On December 11, 2018, U.S. Immigration and Customs Enforcement (ICE) issued a press release reaffirming the agency’s continued commitment to prosecuting employers who knowingly hire and employ ineligible workers. The agency further announced that it will use I-9 audits and penalties to ensure that employers comply with applicable laws.
According to ICE, in Fiscal Year 2018, the agency initiated 6,848 worksite investigations, 5,981 I-9 audits, 779 criminal arrests and 1,525 administrative arrests. Given this active enforcement landscape, it is imperative that employers comply with applicable immigration laws, and understand their rights under such laws.
Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), U.S. employers are required to verify their employees’ identities and authorization to work. Failure to comply with the IRCA requirements can result in criminal charges and penalties ranging from imprisonment to fines from $110 to $1,100 for technical violations, and $375 to $16,000 per violation for knowingly hiring and continuing to hire undocumented workers.
Typically, an I-9 audit is triggered by ICE serving a Notice of Inspection (NOI) upon an employer. Once the NOI is served, employers generally have three business days, absent an extension, to gather and produce the requested documents.
Below are some tips that employers can implement to prepare for an I-9 audit or other legal process (e.g., grand jury or administrative subpoena) from ICE.
- Conduct internal audits. Employers should periodically conduct internal audits of I-9, E-Verify and H-1B documents, to ensure that all of the required documents have been completed accurately and are maintained appropriately.
- Maintain complete and organized records. Make sure to store I-9 forms and the supporting documents separately from personnel files. Employers should also lawfully discard former employees’ I-9 forms, in accordance with applicable law. Current law requires employers to retain I-9 forms for three years after the former employee’s date of hire or a year after the employment relationship ends, whichever is later.
- Be prepared. Create a step-by-step plan on how to respond when ICE visits your company and practice it. In addition, the company’s response plan should be communicated to all employees.
- Appoint and train company representatives. Employers should designate specific employees (and backups) to interact with ICE agents. These employees should be the point of contact if and when ICE arrives and should be trained on how to cooperate with ICE.
- Train your HR employees. Make sure the employees who are responsible for working with applicants to complete the I-9 forms are properly trained in doing so and understand the company’s legal obligations.
- Prepare your employees. It is important to educate your employees on how to interact with ICE agents. Among other things, employees should be instructed to be polite and indicate that the company will cooperate with ICE’s investigation. Employees should also be instructed not to interfere with or obstruct ICE agents. Finally, employees should be instructed that they can, but are not required to, speak with ICE agents – but if they do agree to speak, they should tell the truth. Employees should also be encouraged to direct ICE agents to the company’s designated representative.
- Do not consent to a search of your business. ICE agents can only enter the private areas of a business if they have the company’s permission or a search warrant signed by a judge. Anyone, including ICE, can enter the public areas (e.g., parking lots, lobbies, and waiting areas) of your business without permission. However, absent an arrest warrant or sufficient probable cause, ICE does not have the authority to stop, question or arrest anyone in a company’s public space.
- Engage outside counsel as soon as possible. Given the potential for significant criminal and civil penalties if an employer is in violation of the relevant immigration laws, we recommend contacting outside counsel as soon as the company becomes aware that ICE has initiated any investigative steps. Experienced outside counsel can help the company navigate the complicated legal issues that arise in investigations and also can help to negotiate favorable outcomes for the company.
ICE investigations are an increasingly important and evolving area of criminal and civil government enforcement. It is important that all employers review their practices to ensure a smooth process in the event that ICE comes knocking at the door.