US Immigration and Customs Enforcement (ICE) has broad authority to investigate and enforce Form I-9 compliance, but employers have rights and responsibilities, too. Understanding these rights and responsibilities is critical to surviving an ICE worksite enforcement investigation.
Employers cannot hire workers who are unauthorized to work in the United States and must verify the identity and employment eligibility of employees through the Form I-9 verification process. Forms I-9 must be retained for three years after hiring or one year after the employee’s last day of work, whichever is later. Employers must also make their Forms I-9 available for inspection by ICE or other government agencies upon proper notification.
We received a Notice of Inspection (NOI) from ICE – what happens next?
ICE initiates an I-9 audit by serving an NOI on the employer. The employer has three business days to produce its Forms I-9 along with payroll records and supporting documentation. The employer may waive the three-day period; however, this period allows the employer to contact immigration counsel and prepare for the audit. The employer should copy all documents turned over to ICE.
ICE agents review the documents, identify any technical and/or substantive violations, and provide the audit results. ICE must allow the employer ten business days to correct technical violations and may issue monetary fines for substantive and uncorrected technical violations. Additional civil and criminal charges may be brought against the employer if ICE finds a pattern or practice of noncompliance or the knowing employment of unauthorized workers.
The ICE I-9 audit did not go well – will ICE be back?
The I-9 audit process can be used by ICE to collect evidence of knowing employment of unauthorized workers, among other violations. ICE often uses this evidence to support a raid, in which armed ICE agents arrive unannounced at the employer’s worksite to arrest unauthorized workers and, potentially, company managers or executives who had knowledge of unauthorized employment.
The consequences of an ICE raid can damage a company’s reputation, cost millions of dollars in fines and penalties, and/or result in civil and criminal arrests. Knowing your rights, seeking advice from experienced immigration counsel, and preparing adequately are critical to surviving an ICE raid.
ICE is at the door – what are my rights and responsibilities as an employer?
ICE agents are free to enter any public area in your workplace, but they cannot enter private areas without consent or a valid judicial warrant. A judicial warrant is not the same as an administrative warrant, so be certain to read it and understand its scope.
A judicial warrant will:
- contain the signature of a federal or state judge and the date;
- include a timeframe for the search; and
- describe the premises and items to be searched.
The employer may accept the warrant but not consent to the search. ICE will still execute the warrant, but the employer may have grounds to challenge the search at a later date.
If you receive a judicial warrant, you should immediately call immigration counsel. Even if counsel is out of state, he or she may be able to speak by phone with the ICE agent in charge and provide valuable advice to the employer.
During an ICE raid employers should:
- record the names of the ICE supervising agent and US attorney assigned to the case;
- assign company representatives to accompany each ICE agent as they move around your workplace;
- provide ICE agents access to your facility in accordance with the warrant;
- object to any searches that are outside the scope of the warrant and ask the ICE agent to make note of it;
- protect privileged documents to the extent possible; and
- obtain a list of items seized during the search.
During an ICE raid employers should not:
- block or interfere with the ICE agents in their work;
- hide employees or assist them in leaving the workplace; or
- provide false or misleading information.
In an era of heightened enforcement, any employer is at risk of an ICE enforcement action, but knowledge is power. Informed employers who are working with experienced immigration compliance attorneys are best positioned to maintain order during an audit or raid and to protect their workers and workplace.