What would your staff do if U.S. Department of Homeland Security (“US DHS”) or Immigration and Customs Enforcement (ICE) agents paid a visit to your business? Both administration and staff of any type of business should be generally familiar with the due process rights of the business and its employees. However, when US DHS or ICE arrives to search a state-licensed healthcare institution, further complications may arise. Areas of concern include:
- Entry Rights
ICE and US DHS agents do have the right to enter public spaces within your facility. Parking lots, sidewalks, and interior lobbies or reception areas are generally considered public access areas. Federal officials can observe and interact with individuals in these areas. While patients and staff do not have to communicate with the agents, the agents do not have to affirmatively notify persons that they possess this right under these circumstances. Thus, there is a likelihood that either your staff and clients will want to appear cooperative, or be so flustered that they may break protocol when communicating with the agents.
Internal waiting, examination, or other areas to be utilized by only patients and staff should be clearly marked as private patient-only areas. (i.e. a waiting area where the patient may be partially undressed awaiting a mammography, or a patient is being prepped for a CT, or a group therapy session is being conducted, etc.)
For areas that are not open to the public, a valid judicial warrant signed by a federal judge must be presented prior to the agents’ gaining entry. Signage is important to differentiate public from restricted areas. Staff needs to also be instructed how to differentiate between a valid judicial warrant and an administrative warrant issued by the Department of Homeland Security or ICE itself, which is not sufficient for entry. Medical facility staff should verify the warrant’s validity before granting any access to avoid the government contending that voluntary consent to the search was given.
A judicial warrant will contain the Court’s heading and contain an assigned docket number near the upper right corner of the front page. In Arizona, the header on the top middle of the front page will read: U.S. District Court for the District Court of Arizona. The body of the judicial warrant will:
- Specify the specific address to be searched.
- Outline the time period in which the search must take place.
- Particularly describe the place or person, or both, to be searched and things to be seized.
- Be signed by a Judge or Judicial Magistrate.
If anything different is presented, the business is likely within its legal rights to politely request that the Agents return when they have a judicially-signed warrant, and should seek specific legal counsel if they are able to do so in these circumstances.
- Documentation Review and Confidentiality
In Arizona, employers are required to validate their employees’ right to work in the US by having the applicant complete a Form I-9[1] and utilize the E-Verify system. The Arizona Attorney General’s Office has compiled an informative Employer e-file webpage explaining the E-Verify process and confirming that it applies regardless of the number of staff a business employs. It is generally a good practice to maintain I-9’s and E-Verify confirmations apart from the employees’ overall file. In that way you could produce them in response to valid records request or judicial warrant without exposing further employee records to review. Because this article is not intended as specific legal advice, however, we suggest you consult with your attorney about hiring practice documentation.
Along those lines, neither ADHS nor other state agency has authority to request review of I-9s, or photo identification records (i.e. passport; driver’s license, etc.), unless the staff member is identified as a driver for the business under pertinent regulations. Such a request for government-issued identification is not only outside the state agency’s scope of review (even ostensibly to determine if a person was in the US at the time a certification or licensure was issued), but it may also be a violation of the Immigration and Nationality Act (“INA”).
Federal agents may demand to see right-to-work documentation, either pursuant to judicial warrant or formal audit:
Pursuant to 8 C.F.R § 274a.2(b)(2)(ii), employers receive at least three business days to produce the Form(s) I-9 requested in the NOI. In addition, HSI generally requests that the employer provide supporting documentation, which may include, but is not limited to, a copy of the employer’s payroll, a list of active and terminated employees, articles of incorporation, and business licenses.
When an employer responds to a NOI by producing Form(s) I-9, HSI agents and/or auditors conduct an inspection of the Form(s) I-9 for compliance. When HSI finds technical or procedural failures, the employer receives at least 10 business days to make corrections, pursuant to INA §274A(b)(6)(B) (8 U.S.C. § 1324a(b)(6)(B)). An employer may receive a monetary fine for all substantive violations and uncorrected technical or procedural failures. (https://www.ice.gov/factsheets/i9-inspection)
- HIPAA
In addition to confidentiality obligations imposed by the Health Insurance Portability and Accountability Act (HIPAA) on medical records, Arizona also has a statute addressing confidentiality of medical records. See A.R.S. § 12-2292. This could justify an administrator or owner to accompany the ICE agents in office or other areas that contain unprotected personal health information in the normal course of the business day. It is always a good practice to remind staff not to leave patient charts out; computer screens open to PHI; or speak in a manner in which others can hear confidential information. Staff themselves may also have confidential medical information as part of their personnel file, whether it is TB test results, medical work clearances, or requests for medical leave, those records should likewise not be mixed-in with I-9 forms in personnel files. Although ICE agents are generally not interested in medical records, and are generally focused on the labor force rather than the clientele, there is no exception in either the state or federal law that allows them access to any type of PHI when executing a search warrant.
- Staff Detention
In situations where citizenship or right to work documentation may not have been obtained or maintained appropriately, there is a possibility that a staff member (or client) may be taken into custody. Healthcare institutions must be prepared to call in PRN staff or otherwise operate in a compliant and safe manner if they suffer a staff reduction as a result of an ICE or US DHS search. That individual should likewise be placed on documented unpaid suspension pending investigation.
The Phoenix statistical area had 202,464 ICE detentions for criminality between October, 2020 and December 2024 according to https://www.ice.gov/statistics. The Director of Homeland Security herself was in Phoenix as raids were conducted on April 8, 2025. In January of this year, President Trump signed Executive Order 14159, which directed the Department of Homeland Security to ensure that aliens comply with their duty to register with the government under section 262 of the Immigration and Nationality Act (INA) (8 U.S.C. 1302). ARA registration, however, does not establish any type of immigration status nor employment authorization. It is different from the ‘green card,” which does allow non-citizens to work in the U.S.
Conclusion
It is anticipated that there will be more ICE raids and paper audits conducted going forward. For healthcare facilities that are required to conduct disaster drills, it is recommended to address potential immigration audits as part of a routine drill. Healthcare institutions should also revisit their policies and procedures both with respect to onboarding processes, as well as how to handle inspections by government officials other than a licensing or credentialing agency. Consultation with an employment-law or immigration attorney is also recommended if an employer has questions concerning hiring or documenting existing workforce authorizations.
This article is intended to be for general educational purposes only, and not specific legal advice. – Jennifer Wassermann
[1] Changes may be made to the form from time to time, so be sure to utilize the current version: https://www.uscis.gov/i-9