Government Audits and Visits

An employer is required to complete and retain a Form I-9 for each individual hired for employment in the United States. This form requires an employer to review and record data from the individual’s original identity and employment authorization document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual presenting them.

During an I-9 audit, Immigration & Customs Enforcement (ICE) can demand the presentation of I-9s within three (3) days. Employers facing surprise audits should make every effort to ensure their I-9s are in compliance and that there is an I-9 for each employee hired after November 6, 1986. The I-9s must be fully completed and signed by both the employee and the employer, and expired documents must be updated. Corrections need to be initialed and dated (but never backdated).

Basic I-9 Compliance Recommendations

An employer should have the following basic I-9 compliance procedures in place:

Employer should require every new employee to complete the top portion (Section 1) of the I-9 form on the first day of work. If the employee refuses to do so, he should not be permitted to resume working until this is completed.
In most cases, the new employee must provide documents which show his employment eligibility by the end of the third day of work. If the employee fails to do so, he should not return to work until the documents are provided.
The employee should be permitted to provide any acceptable document or combination of documents listed on the Form I-9 (requesting specific documents can be considered discriminatory). Likewise, an employer must treat all employees in a consistent manner and not discriminate on the basis of citizenship status or national origin in employment eligibility matters.
If an employee is not a U.S. citizen or permanent resident, the employer must note when that person’s employment authorization expires and calendar to re-verify employment eligibility prior to that date.
All I-9 forms should be kept separate from all other personnel or payroll records and may be stored electronically.
Employers should designate specific individuals to handle I-9 compliance with trained back-ups. Serious consequences exist for failing to comply with the law. Even if an employer only employs authorized workers, it can still be liable for significant fines for failure to properly maintain paperwork.
Employers should make efforts to train hiring managers on I-9 requirements and periodically review these requirements with the hiring managers.
Employers should not ignore letters from the Social Security Administration (SSA) stating a particular employee’s Social Security Number does not match SSA records. These are often referred to as “no match” letters. The receipt of such a letter might indicate that an employee is not authorized to work, thereby putting an employer on constructive notice. An employer should follow up on these matters after consulting with counsel.

What should an employer do if ICE makes a site visit to the company?

Examine the search warrant to ensure that it is signed by the court, that it is being served within the permitted time frame, and note the scope of the warrant – the area to be searched and the items to be seized. Normally the scope is quite expansive. Immediately fax or email a copy of the warrant to the employer’s immigration attorney.
If the agent has no search warrant or subpoena, contact the attorney about the advisability of giving consent to the agent to inspect the premises. Immigration agents may make unannounced visits and attempt to obtain such consent.
Contact the immigration attorney and see if s/he can go to the worksite while the raid or ICE visit is occurring as the raid usually lasts several hours or more to complete.
Obtain the name of the supervising agent and the name of the U.S. attorney assigned to the case. In larger operations, the U.S. attorney may be present on site.
Sometimes ICE is accompanied by members of the press. There is no obligation to admit press representatives on the premises. Statements to the press should only be made by your attorney.
Assign one or two company representatives to each agent to follow the agent around the facility. Employers may record on a note pad all actions and/or videotape the officer. Note any items seized and ask if copies can be made before they are taken. ICE doesn’t have to agree, and if they don’t, the employer will be entitled to secure a copy from the government property lockers. Do not block or interfere with ICE activities. Remain calm and composed and do not engage in any hostilities toward the agents.
Company representatives should not give any statements to ICE agents or allow themselves to be interrogated.
The company may inform employees that they have a right to talk with agents if they like, or not talk to them, but don’t direct them not to speak to agents when questioned.
Do not engage in any activities that could support a harboring charge such as hiding employees, aiding in their escape from the premises, providing false or misleading information, denying the presences of specific named employees, or shredding documents.
If agents want access to locked facilities, unlock them – otherwise, agents will forcibly gain entry into locked closets or cabinets.

What can a company do after a raid to assess and limit its liability?

The company should secure separate counsel for each of the “targeted” company representatives and for the corporation.
The company should immediately retain immigration counsel to develop and initiate a program of corporate immigration compliance. This will later benefit the company and help in negotiations with the U.S. Attorney and ICE for civil vs. criminal prosecution or for a negotiated plea with a reduced sentence/and or fine.
The company should take no actions that can be construed as suborning perjury, such as warning people not to speak with ICE investigators or telling them to provide false or misleading statements to investigators. Not only is such activity illegal, but the person may be wired by ICE.
If only one or several worksites were raided, an audit must be immediately conducted at other sites and prompt action must be taken to bring the other worksites into compliance.
Stepped up enforcement is expected to intensify. Employers should be proactive and conduct regular internal audits to ensure that they have a meaningful immigration compliance policy in place and to uncover potential liability such as identity theft, use of fraudulent documents, careless completion of I-9 forms and — most importantly – evidence of the knowing hire or the continued employment of unauthorized workers.