2/3/25 Guidance for Employers Navigating Recent Executive Orders on Immigration

February 3, 2025

By Lex Shvartsmann, Abby Fitts, and Chris Morgan

Since his inauguration on January 20, 2025, President Donald Trump has issued a number of Executive Orders that have potential impacts on employers. One subset of such orders focuses on enforcement of federal laws regarding lawful citizenship and employment authorization. As a result of these orders, employers can expect to see increased enforcement in the form of U.S. Immigration and Customs Enforcement (ICE) workplace investigations and Form I-9 audits.

What Is My Role as an Employer if ICE Is Attempting To Enter My Workplace?

In the event immigration officials come to the workplace, employers need to be aware of their own obligations, their employees’ rights, and the boundaries of immigration officials’ authority. ICE may not enter a private space without either consent or a judicial warrant. A judicial warrant, as compared to an administrative warrant, can be identified by locating a judge’s signature and a label indicating the name of the issuing court (for example, “Multnomah County Circuit Court”). Absent a signed judicial order, ICE must have consent to enter a private area. Some workplaces may choose to designate a representative who is authorized to give such consent. In any case, employers and/or designated representatives should remain calm and make clear that they do not intend to interfere with any lawful activity. 

Employers may want to take additional proactive measures such as labeling private areas and providing training and education to employees in the event immigration officials come to their workplace. Employees and employers alike are always permitted to exercise their right to remain silent.

What Is My Role as an Employer if I Receive Notice of a Form I-9 Audit?

If your business receives a Notice of Inspection, you will have three days to provide your Form I-9 records, as well as any other records requested. Oregon requires most employers to inform employees within 3 business days of receiving notice of an upcoming inspection. You should seek legal counsel to determine if this is the case for your workplace. If any technical or substantive violations are found in the course of the audit, you will be given sufficient time to make corrections and should seek legal counsel to determine if any further action should be taken.

As a preventative measure, employers may consider taking steps to compile Form I-9 records in a manner that is sufficiently accessible to ensure timely compliance with any potential audits. Additionally, employers should consider conducting an internal audit of their Form I-9s to ensure compliance and correct any inaccuracies. If your workplace is considering an internal Form I-9 audit, be sure to contact legal counsel to ensure that you do not unintentionally create additional risk through inappropriate re-verification.  

For more detailed explanations of the issues discussed above, consider joining our upcoming webinar.

For questions on your role as an employer navigating ICE presence or Form I-9 audits, contact Chris Morgan at 503-276-2144 or cmorgan@barran.com, or Abby Fitts at 503-276-2190 or afitts@barran.com.