by Natalia Gove — Originally published in the August/September 2019 issue of ISSA
In recent years, the U.S. Immigration and Customs Enforcement (ICE) has significantly escalated its worksite enforcement efforts, and this trend steadily continues. In 2017, former ICE Acting Director Thomas Homan instructed the investigative unit, the Homeland Security Inspections (HSI), to potentially quintuple worksite enforcement actions in the following year, targeting both employers and employees.
The organization followed through with this commitment. Investigations more than doubled in a few months. In the U.S. fiscal year 2017, ICE conducted 1,360 audits, opened 1,716 worksite investigations, and made about 300 arrests. Businesses were ordered to pay US$97.6 million in judicial forfeiture, fines, restitution, and $7.8 million in civil fines. In comparison, just in the first seven months of fiscal year 2018, ICE opened 3,510 investigations and initiated 2,282 I-9 audits.
This increased enforcement has also been evident in the ICE “raids” that have made national headlines. ICE raided 98 7-Eleven stores nationwide resulting in 21 arrests in January 2018. And in June 2018, the new administration authorized one of the largest workplace raids, arresting close to 150 immigration violators at an Ohio meatpacking plant. ICE described these operations as a warning to other companies employing unauthorized workers.
The HSI’s explicitly stated mission is to increase the number of l-9 audits, and to ensure compliance by criminally prosecuting employers for knowingly breaking the law. Workplace raids have created much negative publicity and workplace disruption, which underscores the importance of establishing appropriate hiring practices to avoid legal violations. Instituting such policies requires an understanding of the main reasons why ICE can investigate employers.
ICE agents will typically visit a workplace for three main reasons:
To conduct inspection of the company’s Form I-9 files
To conduct a raid
To detain certain individuals.
This article focuses on the first two reasons, diving in to what employers needs to know to protect their organizations.
Inspection of Form I-9: Employment eligibility verification
Employers have been obligated to verify the identity and work eligibility of all employees on their payroll since 1986, the year the Immigration Reform and Control Act was enacted. At the time, the thought was that requirement would significantly reduce illegal immigration. While the process and substance of the Employment Eligibility Verification Form I-9 has not varied much, the government’s enforcement of employee verification has changed drastically. Until recently, employers were only marginally penalized and issued civil penalties for not following federal requirements. Now the government is serious about punishing employers (with civil and criminal penalties) for knowingly hiring employees without proper immigration documentation.
Form I-9 confirms the identity of all employees on the payroll and verifies their U.S. work authorization. Completing the forms correctly is the key to protection. If mistakes are discovered in the I-9 records, they should be corrected and documented as such, and should not be backdated.
Responding to a ‘Notice of Inspection’
ICE will issue a Notice of Inspection (NOI) three days in advance, informing the employer to produce hiring documentation. If this happens:
Review the I-9 records to ensure every employee is authorized to work in the United States and their identity has been properly verified. Contact an immigration attorney if there are any legal concerns.
Respond timely to the NOI after a careful review of all the records for completion and accuracy.
Notify management and authorized individuals of the NOI and review current practices.
Review the Best Practice Tips for I-9 Compliance to be well prepared in advance.
ICE raids
ICE agents may come to a workplace without prior notice and conduct a “raid” rather than an I-9 records inspection. In this case, it’s important to know the difference among various types of warrants that agents may present to you or your employees. There is an important distinction among judicial search, judicial arrest, and administrative warrants. It is important to prepare staff that will be interfacing with ICE agents, and to read any documents offered as warrants.
No warrant required (public areas): Agents have full rights to enter public areas of a workplace without permission. Areas are considered public if the general population can enter without need for permission, such as shopping areas in the stores, restaurant/café dining areas, parking lots, hallways, and lobbies.
Judicial search warrant (private areas): It is important to know that ICE must secure a judicial search warrant from a judge in order to conduct a search of the private areas of the business’ premises. If the agent does not have a judicial search warrant, the employer does not have to allow ICE to enter non-public areas. Agents need explicit permission or a “judicial” search warrant to enter non-public areas.
Administrative warrant: An ICE agent might produce an administrative warrant—a document providing the authority to arrest suspected immigration law violators—but it does not permit ICE to search a private business.
Judicial arrest warrant: These warrants are signed by a judge and authorize agents to arrest violators, but they do not permit agents to search non-public business areas.
Penalties for immigration compliance violations
The results of an ICE enforcement action can be quite costly. For example, tree pruning company Asplundh Tree Experts in 2017 paid $95 million in fines—the largest settlement agreement ever levied by ICE for unlawful employment of illegal workers. This settlement came as a result of a six-year ICE investigation that ordered a payment of $80 million in criminal forfeiture and $15 million in civil payment for failure to comply with immigration laws.
Hiring employees without proper employment authorization can lead to many harsh penalties and even loss of business licenses. Such investigations frequently involve additional criminal charges for alien smuggling, harboring illegal aliens, human trafficking, document fraud, worker exploitation, and various employment law violations. In addition, employers can be sued and subject to large penalties under the Racketeer Influenced Corrupt Organizations Act (RICO).
Penalties for uncorrected technical violations range from $220 to $2,191. Penalties for knowingly hiring unauthorized workers can range from $548 per worker for first time violations to $21,916 for a third or subsequent offense. If it’s determined an employer has engaged in a “pattern and practice” of hiring undocumented workers, the fines go up and can even lead to imprisonment.
Avoid compliance issues
The best way to avoid noncompliance is to be audit-ready before an audit is on the horizon—be proactive and be safe. All employers should get in the habit of conducting self-audits. If any legal questions arise, hire immigration attorneys to minimize potential liability.
This information does not constitute legal advice and should not be relied upon as such for specific factual patterns or situations.
Natalia Gove is an immigration attorney with the Florida In-House Counsel Law Group and focuses on business and family federal immigration law. Gove can be reached via email at mailto:ngove@fihclawgroup.com.