Being Prepared for Immigration and Customs Enforcement 'Raids'

Some of my employees have voiced concern about "raids" from immigration officers at their friend's place of employment, even though the employees are all in the U.S. legally.  Apparently, the problem was the employer just did not have the right documentation readily available. Could we be a target? What documentation should we have?

This is a very timely question as we are seeing more and more of these "raids."  The Department of Homeland Security's Immigration and Customs Enforcement (ICE) issued a strategic plan that includes an objective to "create a culture of employer compliance." This has resulted in ICE aggressively pursuing employers who violate the law—even inadvertent "technical" violations.

ICE intends to create a "culture of compliance" through education, I-9 audits and investigations, and criminal and civil sanctions. Businesses that violate the law–beware! 

ICE is aggressively fining companies for paperwork violations related to incomplete or improperly completed Form I-9s.  Even where a company has no unauthorized workers, ICE has levied fines.  For example, one of our clients recently received a Notice of Intent to Fine of nearly $100,000—$935 for each of its 103 incomplete Form I-9s, even though every employee could legally work in the U.S. 

You cannot afford to ignore this potential liability.

Form I-9 Basics

As an employer, you must complete a Form I-9 for every employee you hire. The form is used to verify the employee's identity and that the employee is eligible to work in the United States.  The Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later.  To obtain the latest Form I-9, go to http://www.uscis.gov/I-9Central. 

The Form I-9 has three sections.  The employee must complete Section 1, and provide the employer with valid, current documentation establishing both identity and employment authorization.  The employer must complete Section 2 within 3 business days of the date of hire, utilizing the documentation the employee furnished.  Section 3 is utilized to re-verify and update employee information.

Failure of an employer to ensure proper completion and retention of Forms I-9 may subject an employer to civil monetary penalties of up to $1,100 for each inaccurate Form I-9, and, possibly, criminal penalties imposed on individual executives, managers and supervisors. 

Tips to Protect Your Company

Here are 10 tips to help protect your company and limit exposure for I-9 violations:

1. Keep I-9 forms in a separate binder for current employees and another for terminated employees. Do not keep I-9 forms in employee personnel files.

2. Print a list of all current employees, including name and date of hire.

3. Conduct a self-audit of your I-9 forms to make sure they are correctly completed.

4. Ensure you are using the correct version of the I-9 form.

5. When completing the I-9 form for a new hire, accept no document with an expiration date that has passed.

6. Do not re-verify U.S. passports or passport cards, Permanent Resident or Resident Alien Cards, or List B Identity documents.

7. Ensure you re-verify expiring work authorization documents before they expire and do not allow an employee to continue to work after his or her work authorization document expires.

8. Do not engage in discrimination or document abuse when completing the I-9 form process.

9. If the document(s) presented by the employee is (are) on the Form I-9's List of Acceptable Documents, and if the documents reasonably appear to be genuine and relate to the person presenting it, you may accept the document(s) to complete Section 2 of the I-9 form.

10. Know your rights! If ICE appears to review your I-9 forms and conducts an audit, insist on a written Notice of Inspection and your right to have three business days before you turn over your original I-9 forms.

Unfortunately, most employers are unaware they have a problem with Form I-9 eligibility verification requirements until they are audited by governmental authorities.  By that time, it is generally too late to undo the damage. 

Make sure that the individuals in your company who complete the Form I-9 process are properly trained and that you regularly audit I-9 compliance.  Even if you are confident you have completed the forms correctly, are you willing to gamble nearly $1,000 for each potential violation? We strongly encourage you to contact an attorney familiar with the Form I-9 process before ICE knocks on your door to verify the accuracy of your documents. Create your own culture of compliance and be ready to respond to an ICE audit with confidence.

Eric J. Flessland, of Butzel Long's Detroit, Michigan, office contributed to this article.