Immigration Update - I-9 Audits and Even ICE Site Visits Return with a Vengeance

by Poyner Spruill LLP
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Acting ICE Director Thomas Homan: “ [Our] clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable”

What is the best way to prepare for an increase in resources and focus by Immigration and Customs Enforcement (ICE) on illegal hiring? Conduct your own internal audit and make corrections as needed before ICE appears.  Thomas Homan, Acting Director of ICE, indicated last October that there will be a four- to five-fold increase in workplace enforcement.  Increased enforcement will take several forms: on-site workplace investigations, I-9 audits, and even raids.

In addition to allocating significant resources to the border and wall, the Building America’s Trust Act, introduced on August 3, 2017, increases active duty ICE officers to 8,500 and the hire of 1,500 additional agents for the Department of Homeland Security (DHS) to focus on investigations. Further, the number of ICE attorneys will more than double with the addition of 1,200 new attorneys to the existing 1,100.

Proof that ICE means business is the largest fine ever levied against an employer for “willful blindness” in hiring practices. On September 28, 2017, privately held Asplundh Tree Experts (Asplundh) was fined $95 million, $80 million of which is a forfeiture money judgment accompanied by signing an Administrative Compliance Agreement, with an additional $15 million in civil payments.  According to court documents, from 2010 through 2014, Asplundh hired and rehired employees by accepting documents they knew were false.  After six years of investigations, the Homeland Security Investigations Unit in Philadelphia found that Asplundh’s hiring was decentralized so “that the… highest level of management could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers…”  Thomas Homan commented that "today’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable.  Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet.”

A caution for the over-zealous employer: ICE and the Office of Special Counsel at the US Department of Justice (OSC) have issued guidance on acceptable parameters of permissible internal I-9 audits and practices. OSC enforces the anti-discrimination and document abuse provisions of the immigration law. Following are these entities and other practical guidelines for conducting internal audits in order to be ready for this step-up in I-9 enforcement:

  • A new Form I-9 was issued on July 17, 2017. Old versions cannot be used after September 18, 2017. Never pre-print Form I-9s because of the risk of using an outdated and hence unacceptable version.
  • The same employer representative who completes Form I-9 must be the person who views the original documents that the employee produces.
  • If the I-9 is completed at remote locations, a trained representative of the company must complete the I-9 process. Dereliction by that representative will not insulate the company or its executives from liability.
  • If you decide to audit only a sampling of your I-9s as part of the I-9 internal audit, ensure the sample is based on neutral criteria and the timing cannot be traced to a tip, retaliation or for discriminatory reasons.
  • Have the internal audit process set up in advance, including how, when, and what HR will communicate to employees whose I-9s are deficient, incorrect, or missing.
  • If the audit uncovers an error in Section 1 of the I-9, contact the employee to correct the error. The employee should draw a line through the incorrect information in Section 1, enter the correct or missing information, and initial and date the new entry of information. The employer’s representative should use the same procedure for correcting errors in Section 2.
  • If the audit discloses an incomplete I-9 or missing I-9, contact the employee, providing him or her with a copy of the I-9 and any attached documentation if it exists, with the I-9’s list of acceptable documentation found with the I-9 instructions, and directions on how to obtain missing or inaccurate information such as contacting the local Social Security Administration.
  • A new I-9 should not be required if an existing I-9 appears deficient: the old form should be corrected. If a new I-9 must be used because the original I-9 lacks space for corrections or is damaged, it should be stapled to the deficient I-9. If no I-9 exits, then a written notation of this discovery should be made and a new I-9 completed.
  • If photocopies of documentation do not appear genuine, address that concern with the employee and provide the employee with the list of acceptable documents that is part of the I-9 instructions.
  • Provide a reasonable length of time for an employee to supply adequate identity and/or employment authorization documentation, even allowing or disallowing additional time based upon objective non-discriminatory and non-retaliatory criteria, and then document the basis for decision and efforts of the employee to obtain the acceptable documentation.
  • Never request a specific document as part of the I-9 process.
  • Rejecting an expired green card or US passport is unfair documentary practice.
  • Do not terminate an employee who was not employment authorized and subsequently becomes employment authorized.
  • Do not terminate an employee unless the employee cannot prove identity and/or work authorization.
  • If the employee has left employment when the error is discovered or there is no I-9, attach a signed and dated statement to the I-9 identifying the error and the reason the employee cannot complete or correct the error or provide information for a new I-9.
  • Keep I-9s segregated from other employee records and keep secure. They contain sensitive information and should not be filed with general personnel records.
  • Old I-9s and supporting documents can be destroyed after an employee has been terminated or resigns. Use the following formula as guidance when an I-9 can be destroyed: the longer of either one year from the date of termination/resignation or three years from the date of hire, whichever is longer.
  • If ICE provides a written notice of inspection, the employer has 3 business days’ notice to produce the I-9 Forms unless ICE can produce a search warrant or subpoena. ICE can also request supporting documentation such as payroll and list of current employees, articles of incorporation, and business licenses.
  • However, the OSC has the right to inspect I-9 Forms without a subpoena or warrant.
  • Be prepared for a worksite visit by designating a company contact in advance who will interface with the ICE agent, and have I-9s ready for inspection. The ICE agent should always be escorted and not allowed to wander about the workplace.
  • If your company uses an external electronic provider for I-9 completion and storage, be sure the I-9s are accessible upon demand and unencrypted.
  • If your company uses outside contractors, be sure that they are employment authorized by a certification from the contractor, and indemnification if they are not. Do not take it upon yourself to determine employment eligibility.

Employers have been receiving scam emails from news@uscis.gov, a nonexistent email address made to appear as if it is from the US Citizenship & Immigration Services, asking employers to mail copies of their I-9s to an address provided. USCIS would never request I-9s in this manner.  Do not respond or click links in them.  If you have received such an email, you can report it here or send an email to uscis.webmaster@uscis.dhs.gov.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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