By Mark F. Kluger and William H. Healey
The President has pledged to add 15,000 officers to the ranks of Immigration and Customs Enforcement (“ICE”), which is the investigative arm of the Department of Homeland Security. For its part, ICE recently publicized that it has developed “a comprehensive worksite enforcement strategy.” In other words, employers better prepare for a visit from the Icemen.
So far we have seen ICE’s dramatic “targeted enforcement” raids on employers who employ one or more specific individuals for whom ICE is looking. Those individuals have included both undocumented employees and those with valid work authorization but with some kind of criminal issue, either a conviction or even just pending charges. ICE has made it clear, however, that even if they come to a workplace looking for a specific target, as long as they are in the neighborhood they may check on the status of other employees. Keep in mind, if ICE has reason to believe that an employer knows that an employee is undocumented and especially also a convicted criminal, the agency could seek criminal charges against the employer for harboring or concealing an illegal alien. For purposes of these visits, ICE need not be permitted beyond the front door without a search warrant.
For most employers, the more likely contact with ICE will be through an administrative inspection. Employers are entitled to three (3) whole business days’ notice of such a visit, which will come in the form of a “Notice of Inspection.” To get past the front door for that purpose, ICE will need a Subpoena which will likely seek the production of I-9s for existing and former employees (retained for 1 year after date of termination or 3 years after date of hire whichever is later), as well as payroll records and corporate formation documents.
The ICE agents are looking for I-9s showing expired employment authorization, suspicious patterns of documentation (like all foreign born employees showing the same type of document), and technical violations including things like the employee portion being filled out by the employer, a lack of signatures, acceptance of both a “List A” and “List C” document or similar irregularities. Although the penalties for such violations are civil in nature and can range from $250 to $10,000 per violation, criminal charges are also not off the table if ICE suspects that an employer is knowingly hiring or failing to terminate the undocumented.
With all that’s happening these days with ICE, it’s time to tidy up those I-9s well before the Icemen come calling. Being proactive is important because for most employers, 3 days’ notice is not enough time to get ready. It is also critical to establish in advance (like yesterday) procedures to monitor the expiration dates of employment authorization documents of foreign nationals and to stay on top of the timing of the renewal process for the different forms of authorization and the potential for automatic extensions (based on country of origin and the distinct form of authorization sought). Lastly, it is vital to continue to complete the reauthorization section of the I-9 for all employees whose authorizations are timely renewed.
I-9 compliance is tedious, complicated and more important than ever in light of the increased focus on undocumented individuals. To rest easy in anticipation of the Icemen knocking on your door, call us. We can help.