Are you ready for “men in black” at your business doors? Do you know the difference between an immigration audit and a raid? Do you know your rights and obligations? In the last reported year, U.S. Immigration and Customs Enforcement (ICE) made nearly 5,000 arrests in connection with worksite enforcement investigations, including more than 860 involving criminal violations, and obtained more than $31 million in criminal fines, restitutions, and civil judgments.
As an employer, you are walking a thin line. You cannot discriminate against workers that you just suspect may be illegal and neither can you implement a “U.S. citizens only” policy unless you are in certain restricted industries. On the other hand, you will be held responsible for negligent or purposeful employment of unauthorized workers. Even if you are doing your best to comply with employment eligibility verification rules and keep Forms I-9 in good stead, you may be subject to a routine or targeted audit. With an immigration audit, the government agency (usually, Immigration and Customs Enforcement or ICE) should provide you with a 3-day notice to present your Form I-9 files for review, at a location of the agents’ choosing. An audit would give investigators a glimpse into the employer’s hiring practices and may, potentially, provide sufficient grounds for a subsequent raid. Raids, typically, conclude an extensive investigation into the employer’s business, and, by definition, are a surprise visit to the employer’s worksite. During a raid, ICE agents surround employer’s premises, serve a search warrant on the company’s representatives, and exercise broad authority in interviewing employees, and checking their identity and immigration status documents.
When notified of the raid, employer’s manager should carefully review the warrant presented by the agents and understand the scope of the raid. It is advisable to immediately contact the employer’s attorney for counsel and assistance. Employer and employees should not interfere with the raid, but neither are they obligated to respond to questions during the course of the raid. Depending on the outcome of the raid, the government’s investigation of the company may continue and civil and/or criminal charges may be brought up.
Understanding that an apparently low stress Form I-9 audit may be a precursor of a highly disruptive raid, employers should commit efforts and resources to preventive measures. Steps to be undertaken by a business include establishment of clearly defined, legally sound employment eligibility verification practices; Form I-9 timely completion, maintenance, in-house monitoring, and upkeep; and an established relationship with legal counsel with expert knowledge of immigration laws and regulations.