In the latest salvo of the federal push against undocumented immigrants, the Immigration and Customs Enforcement agency (ICE) began conducting a series of nationwide raids July 14. It’s part of an increasingly tough stance against illegal immigration, and employers should see it as a warning. Those who haven’t gotten their I-9 house in order should do so as swiftly as possible.
The recent activity, which has centered on 10 major cities, appears so far to be aimed primarily at 2,000 undocumented immigrants targeted for deportation. Agents are raiding apartments and homes in an attempt to round them up.
But ICE agents are also going after businesses, at least to some degree. News reports have cited recent I-9 notices being given to companies in South Texas and Michigan, both areas known for their heavy foreign populations.
The raids are also having an outsize effect on businesses in the targeted communities, where groups of undocumented people have spread the word about agents’ presence through social media. Many are hunkering down at home, instead of working and visiting local restaurants and shops as they normally do. One store in Los Angeles reported that business was down 75 percent.
Stepping Up Enforcement
The crackdown on undocumented workers has escalated in recent years. In fiscal year 2018, the government investigated nearly 7,000 workplaces—four times as many as the previous year, and conducted nearly 6,000 I-9 audits—five times the number conducted in 2017.
Penalties, which increased in 2017, can reach to over $2,000 for a simple error, such as failure to confirm that an employee dated a document. Criminal charges, though rare, are also possible for employers who engage in a pattern of hiring or recruiting unauthorized aliens. Agents are more likely to detain employees, and made over 2,000 arrests last year.
Fines can be steep. In fiscal year 2017, companies were assessed $8 million in civil fines and nearly $98 million in judicial forfeitures, fines, and restitutions. Most of that amount came from a single $95 million fine—the largest ever—for Asplundh Tree Experts, Co., a company that rehired undocumented workers who were singled out in an earlier audit.
In this environment, it’s an excellent idea to do your own internal audit before ICE comes knocking at your door.
Conducting an Internal I-9 Audit
To get started, obtain an updated list of current employees and make sure each one has I-9 documentation. You don’t have to document contractors, volunteers, or employees hired before Nov. 6, 1986. You do need to retain documents of fired workers.
Create an audit log to document all problems you find and their resolution. For any employees without an I-9 form, contact them immediately and explain the documentation they need to bring on their next work day. The federal government has a website with the latest information about acceptable documents and instructions for completing the form.
Next, go through all your employee forms in detail to see if they are accurate and complete. Make sure every box is checked and every signature blank is filled in. Record any errors and omissions in your audit log and correct them in accordance with government rules, which are described in a downloadable handbook.
At the end of this process, you will have files that are organized and complete and an audit log demonstrating a good-faith effort to correct all past problems. That should give you confidence if ICE agents show up to conduct a surprise audit, as they often do.
If your company is large enough – with 1000 employees or more – you should consider implementing a cloud-based employee document management software solution that will allow you to see at a glance which employees are missing I-9’s or need to update their supporting documents. Such a system will also allow you to quickly pull all I-9s and put them into a secure online file room, wither for an internal audit, or an ICE inspection audit.
Your Rights During an ICE Visit
Even if your I-9 documentation is as thorough as it can be, a visit from ICE is often a traumatic experience, especially for your workers. It’s important to understand your rights and know what agents can and cannot do.
You should inform employees that they do not have to answer ICE agents’ questions or sign any documents. They can ask to speak to an attorney or remain silent. They do not have to stand in areas corresponding to their country of origin or show cagents identification papers.
During the visit, you should have a designated employee observe the process and take notes, recording agents’ names. If an agent’s behavior seems suspicious, the employee should make a note of it and record the presence of any witnesses. Then contact an immigration attorney.
Agents may enter a public area, such as a lobby or the dining room of a restaurant, without asking permission, but to visit your back offices, they must obtain your consent unless they have a judicial warrant.
A judicial warrant is different from an administrative warrant labeled “Department of Homeland Security.” The administrative warrant—the type ICE agents often carry—does not give them the right to enter your private offices and go through your files. The administrative warrant may mention the name of a specific employee, but you are not required to summon the employee or let the agent know whether he or she currently at work.
If agents do have a judicial warrant, it will specify the areas they are allowed to search. Make sure they stay in bounds. If they arrest an employee, find out where the person is being taken so you can contact their family.
Agents are required to give you three days’ notice before examining your I-9 files. Even if you have confidence in your documentation, there’s no reason to rush the process. It’s a good idea to contact an immigration attorney, who can do an eagle-eye review before you turn over your information.
With so many legal requirements and constant workplace turnover, it can be tough to keep up with I-9 documentation. But in today’s political and regulatory environment, you can’t afford to fall behind. Conducting your own I-9 audit and preparing your staff for an ICE visit will put you in the best position to handle the extra scrutiny that could come to your business at any time.
To learn more about how CartaHR can help you be more compliant and save time on internal and external audits, contact us today.
Andrea Palumbo has over 20 years of experience in the HR and Payroll industry as both an HRIS client and vendor. Her teams are responsible for implementing and maintaining critical HR technology, data and timely processing of payroll for over 1300 employees globally. Andrea’s in-depth knowledge of HR Technology and sensitive employee data allow her to convey the benefits of having a robust HRIS and data management systems working together side by side.