Ever wonder what to do if government agents arrive at your business saying they are there to conduct an I-9 audit?
The Immigration Reform and Control Act (“IRCA”) of 1986 requires that all US employers verify that the individuals they hire are authorized to work in the US. As you know, the Form I-9 is used for verification of an individual’s authorization to work. It is critical that the Form I-9 is properly completed for each person hired.
Further Reading: New I-9 Form Effective 1/22/2017
The U.S. Immigration and Customs Enforcement (“ICE”) is the investigative division of the Department of Homeland Security, and in the first 100 days of the newadministration, ICE has increased its enforcement efforts and related arrests are reportedly up roughly 33% from last year. An ICE agent or auditor may legally arrive unannounced at your principal place of business or at a specific worksite to audit your Form I-9s.
What should you do to protect yourself if you find ICE officials at your business?
- Designate someone at your business to be the primary contact for governmental audits (for example: CEO, CFO, HR Manager, attorney). Make sure your front office personnel know to contact this person immediately if an agent from ICE (or any government agency) appears at the door.
- Ask to see the written Notice of Inspection if the ICE investigative agent or auditor does not present it to you upon their arrival. This notice lists specific information they will inspect.,.
- Employers are allowed 3 business days to produce the requested information so politely insist on your 3 days. Suggested language to use, “I’ll be happy to schedule the review of the requested information following the allowed three business days.”
- Request a copy of the Notice of Inspection.
- DO NOT consent to a search.
- DO NOT provide any information to the ICE investigator at this time.
- DO NOT answer any questions, no matter how simple they may seem.
- Immediately contact legal counsel. In addition, if Propel HR electronically stores your Form I-9s, you should also contact your Propel HR Representative.
- Determine one company representative, whether it be someone from human resources or legal counsel, to serve as the liaison with the auditor.
- Determine the exact information requested in the Notice of Inspection and pull the exact information together in an on-site meeting room or conference room for the auditor to conduct the review. The request will include production of Form I-9s but could also include supporting documents such as copies of payroll records and employee lists. DO NOT provide information that is outside the scope of the Notice of Inspection—only what is requested. If ICE will be taking the original records (not recommended), the company should make copies of all original records to remain on-site.
- DO NOT destroy any Form I-9s or related files following notice of a pending audit.
- Once the inspection is completed, ICE will notify the company of the results in writing. If there are violations cited, legal counsel should be brought in to review the results and assist with any negotiation, settlement or hearing that may result.
The best defense for an ICE inspection is a proactive offense:
- Have a compliance plan for how your company handles its Form I-9 requirements to include conducting regular trainings for the individuals completing the Form I-9s.
- Conduct regular but random, internal I-9 self-audits. Take care to not target a specific group. Consider seeking legal counsel to assist with this process.
- Understand the record maintenance requirements for Form I-9s. Additional information about completion of Form I-9s is available online at http://www.uscis.gov/i-9 and employees responsible for completing the Form I-9 should regularly review and be familiar with the "Handbook for Employers, Guidance for Completing Form I-9", which is available at http://www.uscis.gov/i-9.
An unannounced visit from ICE can be intimidating and unpleasant. Being prepared and having a plan will facilitate the process, saving your business time and money.
Neither Propel PEO, Inc. nor Propel HR, Inc. is a law firm. This blog is intended for informational purposes only. It does not constitute legal advice and is not guaranteed to be correct, complete, or up‐to‐date.