Employers have always needed to be vigilant about complying with immigration laws, most especially with federal I-9 forms and E-Verify requirements. In recent months, news reports have warned of an uptick in Immigration and Customs Enforcement (ICE) audits conducted by the Department of Homeland Security (DHS). These agencies can be daunting, and knowing where to start in preparation for potential audits can be challenging.
Taking a few simple steps now to set you up for success in the event of an audit is your best recipe for navigating these waters smoothly.
What is an ICE Audit?
Most people’s immediate reaction to the idea of an ICE audit is that authorities are looking for illegal immigrants. The reality is that they are auditing a business’s compliance with federal law. Any errors made by the employer, even what may seem like an insignificant paperwork error, can result in fines and sometimes criminal penalties – for the employer.
An ICE audit typically verifies that an employer complies with Form I-9 regulations. These regulations require employers to document the identity and work authorization of every employee hired after November 6, 1986. ICE agents may also review payroll records, employee lists, and other documents to identify any discrepancies with dates or information.
The end result of an ICE audit may be discovering that workers at that business don’t have the legal authority to be employed in the United States. This, of course, has immediate implications for those workers. However, there can be significant implications for the employer and severe consequences for mistakes that don’t even relate to a worker’s ability to work legally in the country.
What can you do now to be prepared?
- Conduct an internal, self-audit of your I-9 forms – You should be checking for completeness and copies of employee documentation. The United States Citizenship and Immigration Services (USCIS) has valuable online resources that help explain how to conduct a self-audit HERE in addition to ICE’s self-audit guide HERE. You can also consider hiring an immigration attorney to assist with audit guidance.
- Create a policy for whether you copy employee documents – Whoever handles your I-9 forms should have a consistent process that is followed every time a new hire presents their I-9 form and identification documents.
You are not required to make or keep copies of the employee’s identification documents, but you certainly can. Problems arise when copies are made for some new hires and not others, as this could give rise to a claim of discrimination. For this reason, you must have a consistent process that either includes or does not include copying employee documents.
One caveat to this is that if you are using E-Verify, you are required to retain a copy of the following documents if they are presented to you: U.S. Passport, passport card, Permanent Resident card, or Employment Authorization Document.
- Correct errors proactively – Even the most seasoned HR professional may find a mistake on an I-9 form once in a while. You should make corrections by crossing out incorrect information, adding the correct details, and dating/initialing the change. Never backdate forms, and never use white-out on an I-9 form. If you discover multiple errors on a form, it is permissible to start over with a new form – as long as you also retain the original form.
- Get organized – Your completed forms do not need to be submitted anywhere. Instead, you need to retain those forms for the past three years after the hire date and/or one year after the employee’s termination date, whichever is longer.
Store I-9 forms in one central, secure file folder. You don’t want to have to be scouring each employee’s individual file in the midst of a tight audit timeline. Having everything together can make things go more smoothly.
- Have clearly written policies – Having policies that outline your company’s compliance with employment verification requirements can demonstrate intent, which can help show good faith if an error is discovered.
- Consider using E-Verify – E-Verify is an internet-based system that compares information entered from an employee’s I-9 to records available to the Department of Homeland Security (DHS) and the Social Security Administration (SSA) to confirm employment eligibility. E-Verify can be used by any employer, but it is required in some instances.
Currently, state laws require private employers to use E-Verify in Alabama, Arizona, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Utah.
In the event that you are required to use E-Verify and are not enrolled already, you should enroll right away. However, it could be a proactive step to begin using E-Verify, even if you are not required to do so. It may become federally mandated at some point. And if you are concerned about accuracy in your employment verification process, E-Verify has added safeguards in place.
- Team communication – Have a plan in place in the event that ICE comes to your business and communicate this to your team. Seeking the guidance of immigration counsel, or resources from reputable organizations such as the National Immigration Law Center can help you prepare.
What can you do if ICE comes to your door?
- If you receive advance notice (Notice of Inspection), acknowledge you received it and note important dates and deadlines.
- If you do not receive advance notice, be professional and express your intent to comply.
- You may ask to see ICE agent identification and request a written warrant signed by a judge in order for them to enter the premises. In most cases, you will be given (or can request) a minimum of three business days’ notice before starting an inspection.
- You always have the right to engage local counsel to help you respond to inspections.
