Immigration and Customs Enforcement (ICE) is continuing its full-court press on employers when it comes to workplace raids, inspections and arrests—and expect more to come.
In a July 24 release, ICE said its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation. Conducted July 16-20, this week-long push saw HSI serve 2,738 I-9 notices of inspection (NOIs) to businesses. Earlier this year HSI served 2,450 notices during the first phase of the initiative.
In total HSI has now issued almost 5,200 NOIs since the beginning of October 2017. In addition, ICE said it has made 675 criminal and 984 administrative worksite-related arrests stemming from its stepped-up enforcement program. This should have been expected because public comments made earlier by HSI officials stated that 2018 will be a year of increased immigration enforcement.
“These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance,” says Dawn M. Lurie, an attorney with the law firm of Seyfarth Shaw.
She notes that fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeat offenses. The costs of paperwork violations range from $224 to $2,236. Companies also may face additional fines, penalties and forfeitures, and those who are government contractors may face debarment from federal contracts.
In ICE’s July 24 press release, HSI reminded employers concerning its approach to worksite enforcement, which includes Form I-9 inspections, civil fines and referrals for debarment; criminal arrest of employers and administrative arrest of unauthorized workers. The agency also pursues an outreach effort called the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.
ICE has increased the number of worksite investigations in 2018 by more than 100% compared to previous years, Lurie points out. “Given stepped-up enforcement, the Administration’s focus on immigration, and a newfound emphasis on interagency cooperation, 2018 continues to be a year for U.S. companies to prioritize compliance in an effort to stay out of the crosshairs of a government investigation.”
Raids vs. Audits
You can easily find your business is one of the industries traditionally targeted for immigration enforcement actions. These include the service industry, restaurants and hospitality, construction, brick and mortar retailers (e.g., food, clothing, drugstores and home improvement stores), food production, landscaping, cleaning, maintenance, or packaging and manufacturing.
“Do not assume that I-9 audits are limited to a particular industry,” warn attorneys for the law firm of Baker McKenzie. “Complacency and indifference about Form I-9 compliance puts employers at risk. While certain sectors may be more at risk, all employers should take heed. The investment of time, effort, and resources to review I-9 compliance makes good business sense and benefits employers in the long run.”
Lurie observes that ICE has chosen to prioritize investigations involving critical infrastructure and key resources. Also, in some cases ICE may have received a tip or lead about a particular business, or the targeting could simply be random. And if you were blessed with a NOI audit in the past, this could be a re-inspection, she says.
However, if your business is not situated in any of these segments, don’t get too comfortable—ICE has made it clear that it has no intention of confining its enforcement activities to these employers.
It is important to keep in mind that ICE has access to two major weapons: conducting an ICE raid or an I-9 Forms audit. An actual raid is significantly more disruptive, note attorneys Davis Bae and Shanon R. Stevenson of the Fisher Phillips law firm.
When conducting a raid, ICE first obtains a search warrant, which means the agency has demonstrated to a judicial official that it has probable cause to effectuate an unplanned visit. “If ICE officials have a search warrant when they come knocking on your door, understand that they will take the position that they are entitled to immediate access to your premises and your records,” Bae and Stevenson say.
Unlike an I-9 Form audit, in the case of a raid there is no three-day period to gather documents, and ICE agents will not wait for your attorney to arrive before conducting a search.
If you are the target of an ICE raid, stay calm and ask for a copy of the warrant. You should examine it to make sure that everything is in order (e.g., that the warrant is signed by a judge). From there, immediately provide a copy to your attorney.
Second, monitor the search to ensure the ICE agents stay within the scope of the warrant, but stay out of their way to the greatest extent possible. “You can assign a company representative to follow the agents around the premises, and record their actions, but do not interfere with their investigation or engage in any hostilities toward them,” Bae and Stevenson suggest.
Third, be mindful of how your actions during the raid might harm the company. “You should not do anything that might constitute harboring undocumented workers, such as hiding employees, aiding in their escape from the premises, shredding documents, or providing false or misleading information,” they warn.
At the same time, company representatives should not give any statements to ICE agents without first speaking with legal counsel, Bae and Stevenson say. In addition, be aware that you cannot tell employees to refrain from speaking to agents if they are questioned, and you should let that occur without interference.
The Fisher Phillips lawyers also recommend that you track what and who is seized by ICE and give that list to your legal counsel when the enforcement action ends. Prepare for negative publicity stemming from an ICE raid. “You should prepare to address the media during and after a raid,” Bae and Stevenson say. “Work with your legal counsel to determine the best way to accomplish this task and whether it is necessary to do so.”
Handling I-9 Audits
Verification audits of immigration paperwork are another matter entirely, even though the results can be just as damaging to an employer. In preparation for receiving their very own I-9 Forms NOIs, employers should take the right steps to prepare, Lurie stresses.
An ICE I-9 audit begins when an auditor or an ICE agent arrives at your doorstep to serve the company with an NOI. Service also can be accomplished via certified U.S. mail, return receipt requested. “Ensure you have a protocol to have an NOI reach the right party [in your company] in a timely fashion,” Lurie says.
If in person, the HIS agent will generally deliver the notice and will request to see a manager or the person charged with Form I-9 supervision duties. The person receiving service of the NOI will need to sign a document acknowledging receipt. The employer has three days to respond to the NOI, but extensions may be granted with good reason. “Do not waive your three-day right to produce the I-9s,” Lurie urges. “You will not receive any ‘credit’ for handing the box of I-9s over while the agent is waiting in the lobby.”
NOIs should be taken very seriously because violations uncovered can prove quite costly, Lurie warns. In 2017, the largest judgment in U.S. history for illegally employing undocumented immigrants was levied against Asplundh Tree Expert Co., which was forced to pay a total of $95 million in forfeitures and civil claims.
“If you receive an audit notice, it is critical that you act immediately and secure an experienced compliance expert to guide you through the ICE inspection process—immediately retaining experienced immigration compliance counsel protects your business,” Lurie advises. She also says you should look into the attorneys’ background to find out what experience they have in defending companies in ICE investigations rather than just conducting internal audits.
The attorneys from Baker McKenzie add that during an I-9 audit, an experienced attorney can liaise with the HSI special agent or auditor at the outset, and build and present the case of an employer’s good faith attempt to comply. After the conclusion of the investigation, the attorney also may negotiate with ICE to potentially mitigate any fines, they note.
Although recent experience indicates that ICE routinely requests I-9s only for current employees, keep in mind that it can ask for both current and terminated employees’ forms that are within the required retention period, and the auditor may choose to expand the scope of the investigation at any point during the review.
The NOI often includes an administrative subpoena with an additional document request in addition to the I-9 Forms. These documents include:
• Current employee list, indicating the date of hire, termination and rehire where applicable.
• E-Verify information (case number on the I-9 or case details attached).
• Copies of quarterly wage and hour reports for a defined period for the specific location.
• Payroll records for the worksite.
• Business entity information (e.g., Employee Identification Number (EIN), business charter, articles of incorporation and business licenses).
• A list of subcontractors and staffing companies that serve the site.
• “No Match” or “Mis-Match” letters from the Social Security Administration.
• Answers to a business entity questionnaire which HSI provides.
Keep in mind that all document copies will need to be submitted with the I-9s if your business retains copies of these documents, Lurie says. “Generally, as a best practice, we recommend keeping document copies.”
Respond and Follow Up
Lurie also counsels that special considerations apply when the employer uses an Electronic I-9 System and it should be prepared to answer questions about the system. You also may be asked to retrieve and reproduce electronically stored Forms I-9, along with any other requested documents.
In addition, expect to be asked to provide the agent with hardware and software needed to inspect electronic documents. You also will need to supply the agent with any existing electronic summary of the information recorded on each Form I-9, information relating to the required indexing system and all audit trails associated with each I-9.
After the inspection is over, Lurie says it is important to make proactive plans for training and further cleanup of your system. “Work with your counsel to assess potential liability and identify trends on Forms I-9 submitted to ICE. Understand what comes next during the lifecycle of an inspection and what type of violations you may be facing.”
The best way to deal with an inspection is to be well prepared before you ever receive an NOI, the Baker McKenzie attorneys say. At minimum they advise that employers prepare by developing and disseminating a game plan for what you expect your employees and managers to do when the government knocks on your door.
“The short deadline to produce documents necessitates immediate action,” they emphasize.
Connect with those tasked with I-9 completion and retention to know the company’s internal I-9 procedures: Who verifies and prepares Form I-9? Where are the I-9s kept? Does the company have an I-9 policy?
“Conduct an I-9 self-audit to assess current compliance and address any errors that can be corrected,” they say. “The three-page Form I-9 may seem simple on its face. Don’t underestimate the potential for errors: The form is a minefield for technical and substantive violations.”
The attorneys also stress that while from a time and cost perspective it may appeal to employers to handle I-9 compliance in-house, that generally is not the wisest course to take.
“The potential reputational damage and civil and criminal penalties are too great• and the nuances of the I-9 too detailed• to go at it alone,” they say. “Employers with in-house teams well suited to tackle an NOI should consider counsel conducting a secondary review of an internal self-audit and appearing at the meeting with HSI to produce the requested documents.”