In 2018, employers have experienced a dramatic spike in investigations by Immigration and Customs Enforcement (ICE). Specifically, ICE has significantly increased I-9 audits and worksite raids.
I-9 forms are used by ICE to verify the identity and employment authorization of individuals hired for employment. An I-9 audit, whether conducted by ICE or internally, will examine the immigration status of your workers and your compliance with federal immigration laws.
Any business may be subject to an I-9 audit, and regardless of whether employers think they have employees who require immigration support, employers should realize the risks for noncompliance. When employers do not fulfill their immigration compliance obligations, ICE may fine an employer several thousand dollars for each violation, and the U.S. Department of Justice may initiate criminal proceedings if necessary. So, what should you do today to prepare for a possible visit from ICE tomorrow?
Anatomy of an I-9 Audit
The most common way your business might interact with ICE is through an I-9 audit. Before conducting one, ICE will send a Notice of Inspection, asking for I-9s and related documentation within a short period of time, which can be as little as three days. While the response from ICE may take as little as a few weeks or as long as three years, the liabilities will continue to exist and drag on your business. If substantive violations are found, ICE may assess heavy monetary penalties, which become exponentially greater if ICE determines you knowingly hired individuals not authorized to work in the United States. If a fine is assessed, your lawyer may be able to negotiate a reduction of the fine or a payment plan or to request a hearing before a federal administrative law judge.
What to do in a Worksite Raid
To conduct a raid, ICE must first obtain a search warrant from a judge and demonstrate probable cause to effectuate an unplanned visit. If ICE officials obtain a search warrant, they will take the position that they are entitled to immediate access to your premises and your records. If you are facing a worksite raid, you should contact your management and attorneys immediately, but ICE agents will conduct the search regardless. If you are the target of an ICE raid, there are certain things you should keep in mind. First, stay calm and ask for a copy of the warrant to ensure all is in order. Monitor the search to ensure the ICE agents stay within the scope of the warrant. Be mindful of how your actions could harm the company, such as damaging any potential evidence. There is no need to provide information to officers that is outside the scope of the warrant. Finally, you should prepare to address the media during and after a raid.
Employers can take three simple steps to limit the risk of an invasive ICE raid.
1. Develop an I-9 compliance program. This program may include tasks such as storing I-9 records in a separate file and appointing an HR professional to oversee all I-9 processes. Once you have a plan in place, train managers and create incentives to ensure compliance.
2. Conduct an internal I-9 audit. Use payroll records to ensure that you have all I-9 forms required for current and/or prior employees. Checking on all employees for the past three years ensures a total review of potentially required I-9s.
3. Establish a protocol for an I-9 audit or worksite raid. Create and train a rapid-response team responsible for handling ICE raids and immediately contacting company management and lawyers.
Employers of all sizes are seeing record fines, and even criminal investigations, as a result of ICE raids. Conscientious employers who lack strong I-9 compliance invariably know of the issue but often put off I-9 compliance as other priorities arise. In the first half of 2018, ICE has conducted more than 5,200 audits. As this number increases, employers should prioritize their I-9 programs or risk being caught in this new ICE age.
Davis C. Bae is regional managing partner in the Seattle office of law firm Fisher Phillips.