Employers! Are you prepared for an ICE raid or I-9 Compliance Audit?

By Jessica Suotmaa November 9, 2018 Business

Since the beginning of the year, we’ve seen an increase in ICE employment site raids. Many attorneys discuss what to do when ICE knocks on your door–discussing your rights and responsibility of compliance, but here we’ll be advising the employer. If you’re small business owner, franchisee, or anyone who employs another person, this is for you.

Why does ICE conduct “raids” and “audits”?

ICE stands for Immigration & Customs Enforcement, which means unless you’re in the import/export business, they are knocking on your door to check for undocumented workers. An ICE audit requires employers to provide copies of all I-9 forms, which verifies an employee’s employment eligibility, on file with HR.

ICE also arrests employers who grossly break employment laws, and issues fines for employees who are not compliant.

Did you know? An error in record keeping can cost you $224-2,236 per form/employee!

What does I-9 compliance mean?

As an employer, you are required to collect United States Citizenship & Immigration Services (USCIS) I-9 forms from every employee working in the U.S. The most recent I-9 Employment Eligibility form can be viewed here.

Did you know? 76% of I-9 forms have an error that could result in a fine!

Instructions state you must have the employee fill out the I-9 form first, then within three days of hire examine and verify the employee’s documents. The employee should have provided two forms of identification and have valid employment authorization.

Don’t think the three-day deadline is optional. Employers who are caught with employees whose identifications they failed to verify can be charged for willfully employing illegal aliens.

Backdating forms is also not an option–it is illegal. Falsifying documents is one of the worst crimes a small business owner can commit. In 2015, a small California-based manufacturing company was fined $12,000 for two things: 1. Failure to maintain valid I-9 forms for 18 of its employees. 2. Backdating I-9 forms after receiving an audit notice. Don’t be like Liberty Packaging Inc.

Once you’ve obtained executed I-9 forms and have verified the IDs, then you must keep the forms for three years from the employee’s first day of employment, or one year after the employee’s last day of employment.

I’m just a small business owner–they won’t audit me

Many of us might think only large companies are audited, but this is not the case. In 2014, ICE conducted 1,320 work site audits, of which fifty percent had under 100 employees (“small” businesses). Your business might not be on the radar, but if even one employee has an outstanding warrant of arrest, then all of your employees will be inspected onsite.

What do I do if ICE is outside?

Ask for identification. Get a business card or take a picture of it with your cellphone.
Ask if they have a warrant.
Check that the warrant is signed by a judge.
Make a copy of the warrant.
Give them your lawyer’s business card.
Be polite and ssk them how you can help them.
Do not be defensive or uncooperative.
Ask if they will accept copies instead of originals. If they refuse, then ask that you be allowed to make copies before originals are taken offsite.
Ask for an inventory of everything they’ve seized, if relevant.
Call your attorney.

Know that you only have to let ICE into private premises if they have a signed warrant to inspect premises. Otherwise ICE can only enter places of business.

Regardless of your circumstances, we do not recommend you to hand over any I-9s without consulting an immigration or employment attorney familiar with I-9s and ICE audits. Contact our office if you need to speak to an attorney now.

What if I receive a notice of an administrative audit?

If ICE has a warrant for your company’s I-9 forms, you have 72 hours to produce the forms. We do not recommend you to rush to your HR and produce them immediately. Rather, schedule a date and time for the I-9s to be picked up. Be sure to make a copy of everything you submit to USCIS or ICE and maintain records of all interactions.

If you have several locations, or your HR is not on site, or you just don’t think you can make the 72 hour deadline, then explain your circumstances and ask for an extension. ICE will normally grant you a short extension.

Finally, if ICE determines you have formative errors in your documents, it will give you 10 days to correct them. If ICE determines you have substantive errors in your documents, it will issue you a notice of a fine or otherwise. If you passed your audit, you will receive a clearance notice.

What can I do to prepare for an audit or raid?

If ICE is outside your door, it’s already a little late. It’s also a little late to start panicking when you receive an audit notice in the mail. The key is to prepare before a potential audit. Here’s what you can do to ensure your business is ready for an I-9 audit or ICE raid:

Take out all your existing I-9 forms and keep them in a separate file
Ensure all employees have filled out an I-9 form in its entirety
- If upon review you discover an employee has not filled out the I-9 at all, then have them fill it out immediately and use the current date. Do not back date.
- Ensure non-citizen employees fill out either their Alien registration number of I-94 number.
Ensure you have filled in Part 2 of the I-9 form in its entirety
- Fill in any blank spaces with a different colored pen and date accordingly.
Fix any errors immediately.
- Correct and notate the correction using a different colored pen and having the person filling it out initial on the side with a current date.
- If the error cannot be corrected, fill out a new form and attach a memo as to why a new form was necessary.
Shred any I-9 forms you no longer need to keep (3 years, 1 year rule)
Keep track of any employees who have Employment Authorization Cards (work permits)
Ask HR to keep a schedule of EAD expiration dates and promptly remind employees of the deadlines
Ensure you are equipped to produce anything ICE may ask you for, including:
- List of current employees (not independent contractors)
- List of recently terminated employees
- Quarterly wage and hour reports
- Payroll records
- E-verify confirmations (if relevant)
- Business information, including business owner’s social security number
Designate someone who will be in charge of monitoring the ICE investigation, keeping records, and notifying your attorney.
Have employee rights information available and pass out to all employees.