President Trump has vowed to protect U.S. workers and jobs and it is clear that one way he plans to achieve this goal is by policing immigration compliance. Under the Trump Administration, U.S. Immigration and Customs Enforcement (ICE) will increase worksite enforcement actions against employers, which could involve issuing I-9 Notices of Inspection, criminal investigations and prosecutions, police-style raids, costly fines, prison time for business owners, and months of damaging press coverage for companies under investigation for employing undocumented workers. In advance of this anticipated scrutiny, employers should be reviewing their employment policies and practices to ensure they are in compliance with U.S. immigration laws.
I-9 Notice of Inspection
A Notice of Inspection requires an employer to allow ICE to inspect their I-9 Employment Eligibility Verification forms to assess compliance with employment and immigration laws. Once a Notice of Inspection has been issued, the targeted employer has three days to provide ICE with the forms for review. In addition to I-9 forms for current and recently terminated employees, employers will be asked to turn over a list of current employees, quarterly wage and hour reports, payroll records, E-Verify confirmations (if the company uses the system), and business information.
At the conclusion of the audit, ICE can issue a Notice of Intent to Fine, assessing civil penalties for errors on the I-9 form, which range from $216 to $2,156 per violation. ICE can also assess civil penalties for knowingly hiring and continuing to employ unauthorized workers, ranging from $539 to $4,313 per unauthorized alien for the first offense. In determining penalty amounts, ICE considers five factors: size of the business, good faith effort to comply, seriousness of the violation, whether the violation involved unauthorized workers, and history of previous violations.
ICE can also conduct a criminal investigation of a business and execute a worksite raid. Typically, a worksite raid is the result of ICE investigating a business for months and gathering evidence of the company’s noncompliance with immigration laws.
If subject to a raid, employers will not receive the three-day notice period that is required before an audit following an I-9 Notice of Inspection. When executing a worksite raid, ICE will come to a business unannounced, surround the premises to prevent anyone from leaving, and serve a search warrant. In executing the search warrant, ICE will seize I-9 forms and supporting documents, personnel files, payroll records, bank records, financial records, tax records, and business information. If ICE discovers undocumented workers, they will also detain the workers.
In the event of a worksite raid, the employer must review the search warrant and contact legal counsel immediately. The employer should designate a company representative to monitor the search and keep a record of all items seized. The company can monitor the search but cannot interfere or resist and must comply with all terms of the warrant. Once the search is complete, ICE will continue its investigation of the company’s immigration compliance, which could lead to criminal charges against the company’s owners, managers or other employees.
How to Be Prepared
Since ICE may soon be aggressively pursuing employers violating U.S. immigration laws, it is critical to take immediate steps to reduce the risk of enforcement action. Employers can take the following actions to prepare for an ICE I-9 form inspection or worksite raid:
- Create a corporate immigration compliance policy.
- Conduct an internal audit of your I-9 forms and correct any errors or omissions on the forms.
- Have outside counsel audit your I-9 forms and assess the company’s level of compliance and exposure to potential fines and criminal investigation.
- Complete I-9 forms if any are lost or missing. Use payroll records to ensure that you have all I-9 forms required for current employees or prior employees.
- Make sure that you are using the correct version of the I-9 form. As of Jan. 22, 2017, the only acceptable version of the I-9 form is that dated Nov. 14, 2016.
- Only accept an employee’s I-9 documents if they are on the I-9’s List of Acceptable Documents, reasonably appear to be genuine, and relate to the individual in question.
- Re-verify work authorization documents before they expire and do not allow an employee to continue to work after the expiration date.
- Do not re-verify Permanent Resident Cards or List B identity documents.
- Do not continue to employ someone you know is not authorized to work in the United States. Seek legal counsel if you believe that an employee is unauthorized to work.
- Calculate the I-9 purge date when an employee leaves and purge the I-9 forms periodically.
- Conduct training for employees responsible for completing I-9 forms based on the common mistakes found during audits.
- Create an I-9 audit and raid action plan that details the steps to take and whom to contact if your company is served with a Notice of Inspection or search warrant.
- Prepare employees for the possibility of a raid.
- Be prepared to address the media during and after a raid.
- Consider using an electronic I-9 system to complete and store these forms as a mechanism to increase your company’s compliance with the I-9 process.
By creating a culture of compliance and reviewing employment practices, companies can best prepare for the possibility of an immigration investigation.