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Counsel’s Corner: ICE Audits – What they are and how to prepare your company

Addressing ICE Audits
U.S. Immigration and Customs Enforcement (ICE) recently released information relating to their increasing efforts to investigate and audit companies for I-9 violations and related illegal hiring practices.

ICE said that “In fiscal year 2018, HSI opened 6,848 worksite investigations compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively; all of these categories surged by 300 to 750 percent over the previous fiscal year.”

This increase should put companies on notice that they must make sure they are I-9 compliant and prepared for potential ICE investigations and audits.

Inspections and Audit Triggers
Inspections and audits are triggered either by ICE acting on its own initiative, without receiving any written complaint, or based on information received from the public or other government agencies alerting ICE of suspected violations. When informed of suspected violations, ICE will investigate those complaints that have a reasonable probability of validity.

Companies should have a comprehensive plan in place to be prepared to address ICE investigations and audits. Front desk employees should be provided with a protocol that sets forth who to contact in the company, (e.g. HR or the CEO) in the event someone from ICE shows up. Employers should immediately engage counsel for representation.  Many company problems relating to ICE audits can be avoided with proper preparation.

Employers who are audited must provide reasonable access to relevant evidence relating to an ICE investigation.  However, if an ICE investigative agent arrives unannounced at the employer’s place of business the employer has the right to request a warrant.  Additionally, employers have the right to refuse to produce any confidential employment records until ICE has obtained a subpoena.  It is important to train staff to know how to address these types of critical preliminary issues.

Once these issues are addressed employers have only three business days to produce requested documents, including the Forms I-9 for all current employees and former employees for a period of at least three years from the date of hire, or for one year after the employee is no longer employed, whichever is longer.  Requested records will typically include relevant documents in addition to the I-9. For example, the first paycheck issued to an employee to compare against the date on the I-9. Employers should only provide what is specifically requested by ICE.

The three-day requirement makes it very important that employers should be sure that all employee records are up-to-date, available and easily accessible and that there are I-9s on file for every employee.  Copies should be made of the I-9s before providing originals to ICE to protect against mistakes, disputes or any other possible issue that may arise between the employer and ICE during an audit.  Never destroy any I-9s or related documents.

Post Investigation
Upon completion of the investigation ICE will notify the employer of the audit results.  They may issue a Warning Notice, or a Notice of Intent to Fine.  ICE has the discretion to issue minor verification violations which require the employer to comply with all regulations in the future. A Notice of Intent to Fine will contain statement of facts relating to the violation, the charge, the statute violated and the fine imposed.  If there are only technical violations the employer may be given 10 days to make corrections.

There are basically two types of violations: 1. Hiring and 2. Paperwork.

Hiring violations occur when an employer knowingly hired, employs, recruited or referred for a fee, an unauthorized alien for employment in the U.S. Hiring violations may result in fines and a notice to cease and desist.

Paperwork violations may result in fines. The fines assessed will vary according to the type and number of violations. Other factors that may be considered include the size of the business, whether the employer was acting in good faith, the employer’s history of violations and whether violations involved unauthorized aliens.

Fines and penalties range from $110 for failing to produce and I-9 to criminal penalties of up to $16,000 or up to 6 months of prison for employers who engage in a practice of violations by knowingly hiring unauthorized aliens.

Employers have the right to counsel and to an administrative hearing.  If they do not file a request for a hearing within 30 days ICE will issue final order in another 45 days providing that a fine will be imposed with no opportunity to appeal the final order.  It is also possible to settle the matter with ICE rather than litigate.

ICE encourages all employers to visit their website I-9 Central, the official source of Form I-9 employment eligibility verification. Employers should provide I-9 training to employees and perform self-audits regularly. These practices will address issues that require correction and educate employers on additional training that may be necessary.  It is also recommended to involve counsel before taking any internal action relating to correcting I-9s in order to avoid, for example, charges of tampering with the I-9s in the event of a future audit and also to guaranty that any action taken is protected by attorney client privilege.

2019 will bring more ICE investigations and audits. Employers are advised to make sure they are prepared and ready to address compliance when the inevitable knock on the company’s door comes.

Geoff Mohun is General Counsel and the Chief Compliance Officer for iWorkGlobal. He has a Juris Doctorate from John F. Kennedy School of Law and is a graduate of California State University, Chico. He was admitted to the State Bar of California in 1997. Connect with Geoff on LinkedIn.


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