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Be Aware of Your Rights When ICE Wants to Review Your I-9 Files

Posted on: July 29th, 2019

By: Ken Levine

Under the current administration, Immigration and Customs Enforcement (ICE) has ramped up investigations on corporate compliance with laws pertaining to the hiring of workers.   The reality is that large, medium and small employers are all at risk of being subject to an ICE enforcement action.

Congress has given Immigration and Customs Enforcement (ICE) broad authority to investigate and enforce Form I-9 compliance.  Under current laws, employers must verify the employment authorization of a new hire through the Form I-9 verification process.  Forms I-9 must be retained for three years after hiring or one year after the employee’s last day of work, whichever is later. Employers must also make their Forms I-9 available for inspection by ICE or other government agencies upon proper notification.  ICE initiates an I-9 audit by serving a Notice of Inspection (NOI) on the employer, who then has three (3) business days to produce internal I-9 forms as well as the other documentation requested.  During the 3 day period, immigration legal counsel may enter their appearance in the matter and should review a copy of all documents that have already been provided or will be provided to ICE. ICE agents review the documents, identify any technical or serious violations, and provide issue an audit report.

 The ICE I-9 audit did not go well – what could that mean?

Significant defects in the I-9 audit could very well mean that ICE will levy substantial financial penalties or even initiate a raid.  The I-9 audit process is where ICE has the ability to weigh evidence of whether an employer is knowingly hiring and employing unauthorized workers.  If the evidence tends to show a company engaging in willful hiring and retaining of unauthorized workers, then a raid by ICE agents and criminal prosecution of company officials is certainly possible.  An “ICE raid” is the description for when agents (without notice) arrive at an employer’s worksite to arrest unauthorized workers, as well as company personnel who possess knowledge or have facilitated unauthorized employment hiring practices.

Employers should note that that ICE agents are entitled to enter any public area in a workplace but require consent (which can unwittingly come from a receptionist) or a judicial warrant in order to access non-public areas.   A judicial warrant has the following characteristics:  1) It contains the signature of a federal or state judge and the date; and 2) It includes a timeframe for the search; and 3) the areas to be searched.

In the current environment, proper I-9 planning can certainly mitigate the effects of an ICE audit.  Working with attorneys well versed in enforcement compliance will best position a company in the event of an audit or raid.  Good faith efforts by employers to correct defects in their I-9 records on their own will by and large make a favorable impression with ICE.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected]

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