Thursday, May 17, 2018

What should you do when ICE comes knocking

“Hi, I’m your friendly neighborhood Immigration and Customs Enforcement officer. Do you mind if I come in and take a quick look at your I-9 forms”

Yesterday I discussed the nuts and bolts of the I-9 form. Today, let’s take a look at what happens when Immigration and Customs Enforcement (ICE) audits your I-9 compliance.

I-9 audits are not pop quizzes. While ICE may just show up at your door, they always need to provide some advance notice of an audit (unless they have a search warrant or subpoena; see below). Thus, the inspection process starts with the service of a Notice of Inspection (NOI) upon an employer compelling the production of its I-9s. By law, an employer must have at least three business days to comply and produce its I-9s.

What’s the first thing  you should do upon receiving an NOI? Call your attorney.

If possible, arrange to have the I-9 inspection take place at the ICE office. This way, you keep ICE agents out of your business. If ICE insists on the inspection occurring at your business, it’s best to segregate them in a conference room to (hopefully) limit any interactions with your employees.

Regardless of where the inspection takes place, the three-day rule provides you valuable time to prepare. What should you be doing during those three business days?
  • Separating I-9s from their personnel files.
  • Reviewing all I-9s for complete compliance.
  • Fixing any errors you find, including amending incorrect or incomplete forms, and completing missing forms. 
  • Re-verify any employees whose temporary work authorization expired.

One special note regarding correcting errors or omissions found on an I-9. Never backdate any documents. Instead, the Department of Justice suggests how to properly, and legally, fix an I-9:
  • Draw a line through the incorrect information; 
  • Enter the correct or omitted information; and 
  • Initial and date the correction or omitted information.

If ICE has a search warrant or subpoena, this is whole different ball game. You do not get the benefit of the three-day notice period, and you cannot refuse to grant access or otherwise resist. Instead, you must grant access. You should also immediately call your attorney, and monitor ICE’s activities as best as you can.

The warrant or subpoena dictates the scope of ICE’s access. If it’s just for your I-9s, then ICE does not have the right to see or remove any other documents, and does not have the right to interview any of your employees. Politely limit them to the scope of their lawful search. If they want or need more, they’ll return with another warrant or subpoena, and you’ll be prepared.

If, however, the warrant is for broadly written for business records, ICE will grab every document they can find, including computers and hard-drives. It can also compel employee interviews, and even the seizure of employees, if ICE has probably cause to believe they are in the country illegally.

Bottom line? I-9s are serious business, and are not be ignored or trifled with.