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When ICE Comes Knocking...

By Tricia Pycraft

September 4, 2018

It is another Monday morning at work.  The weekend was over too soon (again).  Someone you’ve never seen before walks into your office, hands you a piece of paper and asks to see your I-9 forms.  What do you do?  First, look at what they handed you.  Is it a subpoena or a warrant?  Is it asking for certain documents or to talk to certain people?  Who it was issued by?  Is it from the investigative arm of the Department of Homeland Security known as U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI)?  These agents have had a busy year.  HSI announced in July 2018, the results of a two-phase nationwide operation in which I-9 audit notices were served to more than 5,200 businesses since January.  A notice of inspection (NOI) informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law.  During the first phase of the operation, January to March, HSI served 2,540 NOIs and made 61 arrests. From July 16th to the 20th, the second phase of the operation, HSI served 2,738 NOIs and made 32 arrests.

I-9 Forms and Worksite Investigations

Under federal law, employers are required to verify the identity and employment eligibility of all individuals they hire, and to record that information properly using the current Employment Eligibility Verification Form I-9. ICE is the federal agency responsible for upholding immigration law, among other homeland security responsibilities, and it uses the I-9 inspection program to promote compliance with the law and deter illegal employment.

An ICE news release noted that while the agency routinely conducts worksite investigations, HSI is currently increasing the number of I-9 audits in an effort to create a “culture of compliance among employers.”  HSI’s worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law.

The Audit Process

After receiving the NOIs, employers are required to produce the employer’s I-9 forms within three business days (unless an extension is negotiated), after which ICE will conduct an inspection of the records for compliance. If employers are not in compliance with the law, the inspection will likely result in civil fines and may result in criminal prosecution if they are knowingly violating the law.  If the I-9 forms were not completed properly, employers may be fined even if all of their workers are authorized to work in the U.S.  Fines range from $220 to $2,191 per employee just for paperwork violations (and up to $21,916 per unlawfully employed alien if it is the third (or more) offense).  Furthermore, workers encountered during these investigations who are not authorized to remain in the United States may be subject to administrative arrest and removal from the country. 

What to Do?

So, if ICE is at the door, call your attorney and explain what ICE handed to you so that you can be properly advised on the appropriate response.  However, before anyone is at the door, an ounce of prevention is worth a pound of cure.  Be sure you are completing, re-verifying, and retaining the I-9 forms properly.  Please call one of the employment attorneys at Critchfield, Critchfield & Johnston, Ltd. to discuss how to do an internal or external I-9 audit to ensure your company’s I-9 practices are in compliance with the current requirements.

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