Practical tips for employers to minimize immigration risks
Thursday, August 09, 2018
President Trump vowed to protect U.S. workers and jobs upon his election, and one avenue he plans to use to achieve this goal is enforcement of immigration compliance.
Under the Trump administration, U.S. Immigration and Customs Enforcement (ICE) has clearly increased its work site enforcement actions against employers.
Unlike most labor and employment laws, federal immigration laws provide for criminal penalties, including large fines and jail time. From October 2017 through mid-July 2018, ICE issued more than 5,200 Notices of Inspection (NOIs). Even with simple paperwork violations, noncompliance for an employer can be expensive.
Moreover, during the same period, ICE made 675 criminal and 984 administrative work site-related arrests. This article outlines how ICE can gain access to your records, and lists practical guidance for minimizing or avoiding risks that put your company in violation of applicable immigration law.
I-9 Notice of Inspection
An NOI requires an employer to allow ICE to inspect I-9 forms to determine compliance with employment eligibility laws. Once the NOI has been issued, the targeted employer has three days to provide ICE with its I-9 forms to be reviewed.
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 using the system), and business information.
At the conclusion of the audit, ICE can issue to the employer a Notice of Intent to Fine, assessing civil penalties for errors on the I-9 forms ranging from $216 to $2,156 per violation.
ICE can also assess civil penalties ranging from $539 to $4,313 per unauthorized alien for the first offense for knowingly hiring and continuing to employ unauthorized workers. In determining penalty amounts, ICE considers five factors: size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers and history of previous violations.
Work Site Raid
ICE also has the ability to conduct a criminal investigation of a business and execute a work site raid. Typically, a work site raid is the result of ICE investigating a business for months and gathering evidence of the company’s noncompliance with immigration laws.
When subject to a worksite raid, employers do not have the three-day notice period that is required in an I-9 NOI audit. When executing a worksite raid, ICE will come to your business unannounced.
ICE agents will surround your business, preventing anyone from leaving, and they will 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.
During a work site raid, the employer must review the search warrant and should contact legal counsel immediately. You should designate a company representative to monitor the search and keep a record of all items seized.
You can monitor the search, but you cannot interfere or resist the search. You must comply with all terms of the search warrant. Once the search is complete, ICE will continue its investigation of your company’s immigration compliance.
The investigation could lead to criminal charges against the company’s owners, managers or other employees.
Since ICE will aggressively pursue employers violating U.S. immigration laws, you must take immediate steps to reduce your risk of enforcement action.
Among others, you should take the following actions to prepare for an ICE I-9 form inspection and work site raid:
- Create a companywide immigration compliance policy.
- Conduct an internal audit of your I-9 forms and immediately correct any errors or omissions on the forms.
- Have outside counsel review your I-9 forms and assess your level of compliance and exposure for potential fines and a criminal investigation.
- Complete I-9 forms if any are lost or missing. Use payroll records to ensure that you have I-9 forms for all required current employees or prior employees.
- Make sure that you are using the correct version of the I-9 form. As of Aug. 1, 2018, the I-9 form dated Nov. 17, 2017 is the only acceptable version.
- Only accept the 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 person presenting it.
- Re-verify work authorization documents in a timely manner before they expire and do not allow an employee to continue to work after an expiration date.
- Don’t re-verify Permanent Resident Cards or List B Identity documents.
- Don’t continue to employ someone who you know is not authorized to work in the U.S. Seek legal counsel if you have reason to believe that an employee is unauthorized to work.
- Calculate the I-9 purge date when an employee leaves and purge out-of-date I-9 forms periodically.
- Conduct I-9 training for employees responsible for completing I-9 forms based on the common mistakes found during the I-9 audit.
- Create an I-9 Audit and Raid Action Plan that details the steps to take if you are served with a NOI or search warrant.
- Prepare employees for the possibility of a raid.
- Have a communications plan in place and be prepared to address the media during and after a raid.
- Consider using an electronic I-9 system to complete and store I-9 forms as a mechanism to increase your company’s compliance with the I-9 process.
Creating a culture of compliance and periodically reviewing your company’s immigration practices is the best way to prepare your company for an immigration investigation and to minimize your legal risks.
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