Homeland Security Investigations, the investigative office of U.S. Immigration and Customs Enforcement (ICE), is stepping up targeted inspections of employers nationwide as part of President Trump’s crackdown on illegal immigrants.
The increased action is likely to continue over the course of the Trump administration and employers need to be prepared for possible inspections and know how to deal with them.
These raids have two purposes:
- To audit I-9 forms, which are used to verify employment eligibility in the U.S.
- Arrest unlawful workers and employers who hired them knowing they were working illegally.
Under the Immigration and Nationality Act, employers are required to maintain Form I-9 for all employees hired after Nov. 6, 1986.
You must produce any I-9s within three days after receiving a notice that your facility will be inspected.
If you fail to produce the forms, or have made mistakes filling them out or have hired illegal workers, you could be subject to fines, as follows:
- Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation.
- The first I-9 paperwork violation may result in fines of anywhere between $220 and $2,191 for each deficient I-9.
- A first offense of hiring unauthorized workers can result in fines of between $548 and $4,384.
- Fines for knowingly hire and continuing-to-employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end.
In determining penalty amounts, ICE considers five factors:
- The size of the business
- Good-faith effort to comply
- Seriousness of violation
- Whether the violation involved unauthorized workers
- History of previous violations.
After an audit, ICE will notify you, in writing, of the results. The following are the most common notices:
- Notice of Inspection Results– This notice, also known as a “compliance letter,” is used to notify a business that they were found to be in compliance.
- Notice of Suspect Documents– This notice advises the employer that based on a review of the Forms I-9 and documentation submitted by an employee, ICE has determined that an employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ that individual.
- Notice of Discrepancies– This notice advises that ICE was unable to determine an employee’s work eligibility. The employer should provide the employee with a copy of the notice, and give them an opportunity to present ICE with additional documentation to establish their employment eligibility.
- Notice of Technical or Procedural Failures– This notice identifies technical violations found during the inspection and gives the employer 10 business days to correct the forms. After 10 business days, uncorrected technical and procedural failures will become substantive violations.
- Warning Notice– This is issued after substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.
- Notice of Intent to Fine– ICE will issue this form for substantive, uncorrected technical, knowingly hire and continuing-to-employ violations.
What you can do
To be prepared for encounters with ICE or an audit, there are a few steps you can take. The employment law firm of Littler Mendelson recommends that you:
- Designate a point of contact person to deal with an ICE audit.
- Familiarize yourself with the limits of ICE warrants.
- Prepare communications for both employees and the general public to address morale and public-relations concerns.
- Create a uniform process to manage the public relations aspects of ICE intervention.
- Dedicate time to ensure Form I-9 compliance.