Immigration enforcement has recently been making news across the United States. At Employers Council, we have heard from members wanting to know how they should prepare for any enforcement actions, such as raids or audits, and how they can mitigate risks. This article breaks down some of the crucial terms in this area, describes the risks employers face, and provides guidance on the steps employers can take if they have concerns.
ICE Audits
Audits have historically occurred more frequently than raids. However, if an employer is not prepared, the consequences of an audit can be just as serious as the consequences of a raid, as both can result in civil or criminal liability.
Prior to an audit, the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), or Homeland Security Investigations (HSI) will serve a Notice of Inspection (NOI)/subpoena on the employer either by hand delivery or certified mail/FedEx. The NOI will request that the employer produce I-9 forms for its current and former employees, with a look-back period of one to three years. If supporting documentation has been retained, that will also be requested, including, but not limited to, items like passports, green cards, EADs, and E-Verify confirmations.
Among other things, the subpoena will request a list of employees’ names, the most recent payroll, quarterly payroll reports filed with the IRS or state agency, owners’ names and biographical information, and names of contractors and staffing agencies used by the employer. Typically, the employer will be required to produce these documents within three business days. Upon receiving an NOI, the employer should immediately contact their immigration counsel.
During an audit, ICE auditors look for substantive and technical violations. Substantive violations include such items as incomplete, incorrect, or missing forms. Technical violations typically involve minor errors. The employer will be given 10 days to remedy technical violations, and, if they are remedied, penalties may be avoided.
ICE Raids
While employers receive advance notice of an ICE audit, albeit just three days, they have no advance notice when an ICE raid occurs. Therefore, an ICE raid is far more disruptive than an audit because the employer has no time to prepare. A team of ICE agents will appear at the worksite and surround the premises, monitoring all exits and entrances. Agents will enter the workplace and produce a search warrant containing a detailed description of what they are authorized to search for and seize. This list may include I-9 forms and supporting documents, payroll records, Social Security Administration documents, IRS employment tax documents, and other employee records.
If ICE discovers unauthorized workers at a worksite, it may arrest or detain them. If a worker has committed a federal crime, such as identity theft, they may be remanded to immigration or federal court. When the raid concludes, ICE agents may leave a list of the property seized and employees that have been arrested.
If you are the subject of an ICE worksite raid, you should immediately contact your immigration attorney and follow their guidance.
What to Do
To better prepare for a potential raid or audit and mitigate the potential penalties that may result, it is vital that employers take a proactive approach and take affirmative steps to ensure compliance with I-9 requirements. The following are some recommended actions you can take:
-
Provide Training: It is also important to train your HR staff and managers in how to correctly complete I-9 forms and to recognize and address documentation or work authorization issues. To assist you, Employers Council has several instructor-led and on-demand training courses addressing I-9 compliance and a whitepaper on how to complete Form I-9 in compliance with the Immigration Reform and Control Act.
Penalties for Noncompliance
Noncompliance with I-9 verification requirements can be severe. Uncorrected I-9 violations can result in civil penalties of up to $2,861 per Form I-9, while penalties for knowingly employing an unauthorized alien can range from $716 per individual for a first offense to $28,619 per individual for a third or greater offense.
In addition, criminal penalties, including fines and imprisonment, can be levied against managers and business owners who harbor or help conceal undocumented workers.
Business operations can also be put in jeopardy because the president of the United States can issue an executive order barring the federal government from purchasing goods and services from an employer that violates the law. And ICE raids are disruptive to ongoing operations, can damage employee morale, and can create adverse publicity for the organization.
The new administration’s increased scrutiny and heightened focus on immigration enforcement make it imperative that employers proactively prepare for potential audits and raids. Employers Council attorneys and HR consultants are available to assist you. Contact us at info@employerscouncil.org.
Barbara Bagdon is an attorney for Employers Council.