With the Administration’s plan to build a huge wall along the United States-Mexican border stalled without funding and with waning support, the White House has increasingly shifted its immigration enforcement to employers. Most of the 15,000 Immigration and Customs Enforcement (ICE) officers expected to be hired over the next year and beyond are expected to focus on employer immigration law compliance, including random employer inspections to conduct audits of a company’s Form I-9 records, site inspections for undocumented employees, and demands to review private corporate and employee records.
One mistake—however minimal—can have devastating consequences on the employer, not the employee: millions in fines, loss of federal grants and contracts, forced SEC reporting (if a public company that leads a stock to plummet), years in prison.
Be Proactive. Be Prepared. And, Prevent Jail. Here’s How:
1. Retain Outside Corporate Immigration Counsel Now. Counsel should:
- Immediately perform an audit of all current Form I-9s, human resource records, and current procedures when conducting the federally-mandated immigration verifications and identification inspections.
- Prepare SOPs and implement training on immigration compliance matters and for random inspections.
- Be on call, day and night, for each shift of work, should ICE come knocking.
2. Train, Verify, Keep Records, and Self-Audit.
- Train HR teams about proper immigration verification methods and processes, including the ins and outs of identification, social security, and other employment authorization-related documents.
- Conduct internal, random audits of Form I-9s, as well as the supporting employment authorization-related documents.
- Remember that employers must verify the employment immigration status of all employees, even if the employee claims United States Citizenship.
- Stress the severe financial and criminal penalties that may follow the simplest of errors.
- Or, leave it up to the immigration lawyers. As a leading corporate immigration practice group, Norris McLaughlin takes the I-9 immigration pressure away by managing all immigration compliance, including ongoing, onsite, and remote Form I-9, identity, and immigration verifications and audits.
3. Best Practices When ICE Comes Knocking.
- Employers Have Rights. Use them. ICE agents have procedures to conduct employer immigration audits, including a three-day notification period prior to the inspection.
- Have people available on premises at all times who are trained on how to cooperate without causing alarm, and keep ICE agents in a place outside the view of employees and customers.
- These individuals must know how to reach out to the human resources point person, the corporate legal department, and outside immigration counsel as soon as ICE agents knock.
- Do not be combative or aggressive or cause any unnecessary commotion.
- Do not talk to any ICE agent, other than to advise that the corporate immigration attorney is en route.
- Do not let ICE agents beyond the front door or a room near the front door that is away from employees and customers.
- Do not answer any questions.
- Do not let ICE agents talk to employees without a proper warrant.
- Do not let ICE agents walk through the corporate property without a proper warrant.
- Do not turn over any documents without a subpoena or warrant.
- Wait for your corporate immigration attorney, who will review any ICE agent documents, assert the employer’s rights, demand notices of inspections, and arrange for a deferred inspection to allow the employer a short period to prepare for the audit, including the review of any possible preemptive, self-reporting measures, should the company be lacking in its immigration compliance.
The best prevention is competent immigration representation. To learn more about Immigration I-9 Corporate Compliance or any other immigration issue, please contact me at firstname.lastname@example.org.