January 22/29, 2018: Volume 33, Issue 16
By K.J. Quinn
If U.S. Immigration & Customs Enforcement (ICE) agents come knocking on your door, don’t be caught with your pants down. Preparing for ICE raids or audits before the incidents occur is critical to keeping a business afloat. Thus, it is imperative for employers to maintain proper records and supporting documentation to ensure compliance, legal experts say.
“ICE has signaled that it means business,” said F. Keith Covington, a partner at Bradley Arant Boult Cummings LLP, a North Birmingham, Ala.-based law firm. “Employers would be wise to make sure their immigration compliance is in order.”
The warning shot was fired back in 2017, when ICE reportedly stepped up the number of audits and raids at various businesses across the country. “It is anticipated the Immigration and Customs Enforcement will increase audits of employers’ I-9 compliance and workplace raids,” said Jeff King, World Floor Covering Association legal counsel and a partner at JWKing & Associates, Delray Beach, Fla. “It is key employers understand their rights and obligations to protect themselves from improper audits or raids and ensure they do not violate their obligations.”
The key to surviving an ICE raid and ICE audit is to be prepared before either event happens. This requires, among other things, I-9 forms that are complete and in compliance with the law. “Employers need to understand the integrity of their employment records is just as important to the Federal government as the integrity of their tax files or banking records,” said Danielle Bennett, an ICE spokesperson. “All industries, regardless of size, location and type, are expected to comply with the law.”
It can be relatively easy for undocumented workers to provide acceptable looking I-9 documentation and pass the employment verification process. “Moreover, once an individual has made it into a company in this manner, he or she may advertise the company to other undocumented workers,” said David Jones, an attorney at Fisher & Phillips, Memphis, Tenn., a national labor and employment law firm. “In the event of an audit or raid, a company that believed all of its workers were lawful can suddenly be without a workforce.”
Legal experts advise employers to conduct an internal audit so they can review data, check compliance and take any corrective measures before ICE comes calling. “ICE tends to be very gentle on employers who take corrective action before they audit a worksite,” said Davis Bae, regional managing partner at Fisher & Phillips’ Seattle office. “By going through and auditing the I-9s, you can frequently make ICE’s job easier, which could result in them lessening or even waiving fines.” Internal audits can be conducted by an HR consultant, attorney or other third party who is not involved with the employer’s day-to-day I-9 process.
For technical or procedural violations, such as minor errors on forms, an employer is given 10 business days to make corrections. “The idea is to make any necessary corrections in a transparent manner,” Covington said, “not in a way that might look like the employer is trying to hide the fact the errors existed originally.” The Department of Justice and ICE have published a joint guidance for employers conducting internal Form I-9 audits.
Employers should also ensure the people responsible for I-9 compliance are properly trained, legal experts say, so mistakes can be avoided upfront and they are capable of spotting issues and fraudulent documents. Law firms are among the sources that can provide guidance on I-9 form preparation and completion as well as reviews of I-9 records. “Employers may also want to consider utilizing E-Verify if they are not already required to do so by state or local law,” Covington said, referring to the Internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S. While E-Verify is not foolproof, it is much harder and less common for someone to make it through with a stolen identity.