Although President Trump’s attempts to pass sweeping immigration reform have been largely unsuccessful, since his inauguration there has been a sharp increase in enforcement of current immigration policies in the workplace. One such policy is that employers verify that all employees are authorized to work in the United States. Since 1986, the Immigration Reform and Control Act (IRCA) requires employers to verify work authorization by reviewing each employee’s identification documents and completing (and retaining) Employment Eligibility Verification Forms (Forms I-9).
Enforcement of IRCA is largely accomplished through the initiation of I-9 audits conducted by Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security (DHS). According to the National Law Review, in 2018, the number of audits conducted increased by more than 400 percent, from 1,360 in 2017 to 5,981 in 2018.
What Is an ICE Audit?
During an ICE audit, ICE officials are legally permitted to examine Forms I-9 for compliance and determination of fines or other criminal penalties for violations. ICE audits may be initiated based on tips from various sources, but companies are also subject to being randomly selected from a national database of employers.
In most circumstances, an ICE audit begins when an ICE agent arrives at the workplace and delivers a Notice of Inspection (NOI). Upon receipt of a NOI, the company is provided with three days to respond. In some circumstances, with good reason, an extension to respond may be granted. After the three-day period, or any extension, the employer is required to produce for inspection Forms I-9 for all active employees and any employees terminated within the retention period. (Forms I-9 must be retained for certain periods even after an employee is terminated or leaves a position.) ICE officials may arrive on site to conduct an inspection or investigation. While on site, ICE officials cannot enter non-public areas of a building or speak with employees on the premises unless the officers have a warrant or the employer’s consent, unless certain circumstances exist to permit further investigation without a warrant, subpoena, or the employer’s consent.
Preparing for an Audit
The key to preparing for a potential ICE audit is to be proactive. One of the most effective ways for an employer to prepare for an ICE audit is to conduct an independent self-audit to ensure they are in order and in compliance with all requirements. An employer may choose to perform the internal audit or hire counsel to do so. Hiring independent counsel that specializes in this area of the law to perform the audit provides the employer with several benefits. Counsel can walk the employer through the audit process, determine any deficiencies that exist, and prevent the possibility of any deficiencies being covered up by staff members or other employees. Performing self-audits not only gives employers an opportunity to identify errors, omissions, or other deficiencies, but is also evidence of a good faith effort on the part of the employer to make all reasonable efforts to comply with the requirements.
Employers should prepare to take immediate action to correct any deficiencies a self-audit reveals. Forms I-9 should never be backdated, as that evidences an attempt to willfully and intentionally deceive government officials. Deficiencies should be corrected in a conspicuous manner. Use a different color ink to indicate a correction and have the person making the correction initial it. In addition, the internal audit process should be adequately documented. For example, attach a memorandum to the deficient Form I-9 identifying the deficiency discovered and the steps taken by the employer to correct it.
In addition to performing an internal self-audit, employers should always review or establish sound policies and procedures for completing Forms I-9 and maintaining adequate records. Employers should always exercise due diligence when making employment decisions to ensure that each employee is compliant.
Here are a few quick methods to avoid or reduce exposure:
- Ensure that there is a Form I-9 on file for every active employee.
- Ensure all reverifications are completed where an employee’s work authorization has expired and form a schedule for ensuring that reverification is completed timely.
- Maintain copies of identity and work eligibility documents.
In any event, hiring independent legal counsel will prepare employers for any potential ICE audits and provide employers with an additional layer of protection should the employer receive a NOI. Introducing a systematic approach to records maintenance will make it simpler for internal audits and shield employers from the significant penalties IRCA imposes. Technical violations, those which are inadvertent or procedural, can carry fines between $230 to $2,292 for first-time violators. Fines for knowingly hiring, employing, or continuing to employ unauthorized workers are between $573 to $6,878 for first-time violators and can reach up to $20,130 for the third (or later) violation. In addition to civil penalties imposed for failing to comply with the provisions of IRCA, employers should be aware of potential criminal liability if ICE determines that the employer engaged in a pattern of hiring or recruiting undocumented workers.
Impact on the Construction Industry
In the midst of a nationwide shortage of skilled workers, many contractors are struggling to adhere to federal hiring requirements, exposing many employers to civil fines and criminal charges which would ultimately challenge their ability to survive.
It is important to note that both general contractors and subcontractors bear the same responsibilities when it comes to maintaining Forms I-9 documentation. General contractors should be further aware that they could be held responsible if a subcontractor fails to meet all requirements. Ultimately, liability depends on knowledge. If a general contractor or even a large subcontractor is aware that a lower-tier subcontractor is employing undocumented workers, they can be held liable as well. To prevent any issues regarding knowledge, contractors should always make proper inquiries into hiring and employment practices of subcontractors.
As previously discussed, it is critical that each employer implement and enforce sound employment and employee documentation policies to ensure compliance with all federal requirements. Hiring independent legal counsel can assist with identifying and rectifying any deficiencies which an employer is not even aware exist. Getting out in front of deficiencies is critical to avoid civil or criminal liability should an ICE official come knocking on the door.
About the author: Lindsey E. Powell is an attorney with Anderson Jones, PLLC practicing in North Carolina and Georgia. Questions about this article can be directed to her at [email protected]. Author credit is also given to Keith A. Boyette, attorney with Anderson Jones, PLLC who may be reached at [email protected].
Author’s note: This article is intended only for informational purposes and should not be construed as legal advice.
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