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.