Summer Associate Julianne Severson and Lawyer Jean Bender
Nationwide, the Trump Administration’s efforts to find and deport undocumented immigrants have dominated the news. These deportations are also being enforced here in South Dakota. On May 13, 2025, in Madison, South Dakota, U.S. Immigration and Customs Enforcement (ICE) initiated “worksite enforcement actions” against two companies, detaining eight allegedly undocumented immigrants from Nicaragua, El Salvador, and Guatemala. According to a statement released regarding the actions in Madison, ICE Special Agent Jamie Holt stated their efforts to find individuals illegally employed are not solely focused on large metropolitan areas, but “they are happening in small towns across rural America, and we will continue to hold violators accountable, wherever they operate.”
In preparation for possible enforcement actions, all employers should review their companies’ employment practices and files, verifying compliance with federal employment eligibility requirements. The Immigration Reform and Control Act (IRCA) of 1986 requires employers to verify the identity and work eligibility of employees through the Employment Eligibility Verification I-9 Form within three days of hiring an employee.
When ICE initiates a worksite enforcement action, ICE agents may appear unannounced and issue a Notice of Inspection (NOI). ICE may inspect employers’ I-9 Form records and other associated documents. After ICE issues an NOI, the employer must produce I-9 Forms and associated documents within three business days. ICE may grant additional time, if it determines it is reasonable. Other associated documents requested may include employee rosters, quarterly wage reports, payroll records, E-Verify documentation and electronic I-9 information. However, the most common type of immigration worksite enforcement by ICE is an I-9 audit.
Therefore, the most effective way to prepare for a possible NOI or worksite enforcement action is to review your company’s I-9 policies and procedures. Then, review your completed I-9 Forms, ensuring your company is using the most up to date I-9 Form for new hires. Next, complete a thorough audit of each employee file verifying you have a completed I-9 for every employee. If one is discovered missing in the audit, promptly complete one and attach a memo explaining the I-9 was missing during an internal audit. Carefully review completed Forms for any mistakes, including missing or incomplete information. Ensure the Form is signed and the employee attested to his or her citizenship or immigration status. If a mistake is discovered, do not use White-Out or backdate information. Instead, corrections should be initialed and dated. Review the copies of all identification documents (e.g. driver license, social security card, passport, etc.) accompanying the I-9. Verify the types of identifications used are permissible according to the I-9 instructions. Look for any possible fraudulent or suspect documents. Finally, ensure adherence to record retention rules – three years after hire or one year after termination, whichever is later.
We encourage you to take the time now to review your employee files to ensure compliance. Employers who knowingly employ those unable to legally work in the United States face significant fines and penalties. HR managers or business owners may face penalties and fines for knowingly failing to comply with workforce requirements.
For help ensuring compliance, contact a Davenport Evans lawyer at 605-336-2880, [email protected], or find a specific attorney on our Our Lawyers page.
Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the state’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.