Form I-9 Audits: Formally, an I-9 audit is called an Administrative Inspection. It begins when ICE serves a Notice of Inspection to a company representative requesting a review of the company’s I-9 forms for every employee. ICE may only request I-9 forms and a list of current and past employees with their social security numbers. ICE may not request any personnel file that goes beyond this information. A Notice of inspection must be served at least three days before ICE conducts the audit. During this time, we recommend that the company make copies of all documentation it intends to provide to ICE and further recommend asking ICE if it will accept copies instead of original paperwork. The company is entitled to keep copies of the documents it provides in response to the Notice. Keep in mind that the Department of Labor may also request I-9 forms as part of their audit responsibilities.
ICE will give the company ten (10) days to correct any technical or procedural deficiencies in documentation. If the company fails to provide an I-9 for any employee or fails to correct a paperwork error, any violation subsequently found may be treated as a “substantive” violation, which can carry a fine of up to $1,100 per violation. Further, if the company hires an unauthorized worker, or continues to employ a worker after discovering improper documentation, the company can be fined up to $16,000 per violation, and company executives and/or HR managers may be subject to criminal prosecution. The investigation can last several months. If ICE finds no violations, it will issue a “Notice of Inspection Results,” called a “compliance letter.”
Immigration “Raids”: ICE may arrive at a place of business in its enforcement capacity by making an unannounced visit to the workplace to search the premises, question employees, and review documents. In order to carry out such a “raid,” ICE must apply for a judicial (as opposed to an administrative) search warrant or arrest warrant for certain individuals. ICE may obtain such a warrant based on evidence such as noncompliance during an I-9 audit, a “tip” regarding an improperly documented employee, or the offsite arrest of an employee who admits to working there without proper authorization. A judicial search warrant, which is issued by a court, permits ICE to search areas of a business not otherwise open to the public. Without a judicial search warrant, ICE may only enter areas of the business open to the public.
In order to carry out an effective response to such a raid, consider designating one employee as a “Response Lead” at each corporate location that is deemed of potential interest to ICE. The Lead will be responsible for notifying in-house or outside counsel, and facility personnel of the raid, and act as the company’s official point of contact for law enforcement throughout the raid.
For this scenario, the company’s Response Lead should consider the following protocol:
- Immediately, contact in-house counsel, outside counsel, and senior management regarding the search. Response Lead should identify the agent-in-charge of the raid and inform him/her that the Response Lead should be the designated point of contact for the facility.
- Obtain and review the search warrant. Monitor its execution to ensure the search and seizure of documents complies with the authorization by the court.
- If counsel is not immediately able to come to the scene, memorialize, in real time, details concerning the agent’s execution of the warrant including, timeframe, locations within the facility searched and ignored, any employees the agent’s may be discussing.
- During the raid, call the agents’ attention to any privileged or potentially privileged documents and/or electronic media they may attempt to seize. If there is reason to believe that materials covered by a warrant may be privileged, advise agents immediately—if not to prevent the materials’ seizure, then at least to delay their subsequent inspection.
- Remind employees by written card or script of their rights in the event they are approached by law enforcement and requested to submit to an interview. After advising them of their rights, consider releasing nonessential employees for the remainder of the day so that they are less available/likely to be interviewed.
- Request that agents copy on-site all documents and/or electronic media to be seized. Request that original materials be left with the company. If agents decline, request copies before originals are taken off-site. Request an inventory from agents of everything seized.
Employee Interviews during a Raid:
It is advisable to provide this information to employees in writing or from a written script, so there is no question regarding the substance and propriety of the advice in the event that enforcement authorities, at some point, contend otherwise:
- Do not hinder, interfere with, or obstruct in any way the agents’ search of the facility or seizure of materials. Do not destroy, alter, or hide any documents, records, computer disks or files, or other electronic media. Doing any of these things could constitute a criminal offense for which you, individually, could be prosecuted.
- If approached and asked by government agents to submit voluntarily to an interview, you may choose to do so. However, you are under no legal obligation to do so. You may request to consult with corporate counsel or any other attorney before you agree to be interviewed.
- If you agree to be interviewed, you may condition your willingness on the presence of counsel at your interview, including corporate counsel. You may also specify a time, date and location of your own choosing. Company counsel will request to be present at employee interviews. You may terminate an interview at any time you choose and/or choose to answer some of the agents’ questions, but not others.
- In the event that you agree to be interviewed by government agents, your answers to their questions must be entirely truthful. Making an intentionally false statement to a government agent is a serious criminal offense for which you can be prosecuted. Anything that you say to government agents can be used against you in a future criminal prosecution, civil action for money damages, and/or administrative enforcement proceeding. So listen carefully to the agents’ questions, think about the accuracy and completeness of your response before you answer, and advise agents if you are providing information of which you are unsure, of which you have only second hand knowledge, or which you know may be of questionable accuracy.