CLCA IMMIGRATION

WHEN ICE COMES TO VISIT

by Michael Riley

WHAT TO DO BEFORE, DURING AND AFTER IMMIGRATION AND CUSTOMS ENFORCEMENT OFFICERS AUDIT YOUR COMPANY

After the terrorist attacks of September 11, 2001, the then-newly formed Department of Homeland Security (DHS) assumed oversight of what had previously been mostly an administrative compliance effort and turned it into an aggressive pursuit of people working illegally in the U.S., with Immigration and Customs Enforcement (ICE) officers showing up unannounced on job sites and rounding up suspects. Hence the term “ICE raids.”

The practice lasted long enough to make an indelible impression. But when the Obama Administration took over in January 2009, the emphasis shifted again. Matt Chandler, a DHS spokesperson in Washington D.C., recently acknowledged that the government has moved away from military style tactics and instead put the focus on conducting short-notice (three days) I-9 audits.

“When you’re saying raid, yes, we may still enter the workplace,” Chandler said in a TV news interview, “but the objective (now) is to go after the employer, not … the employee.”

So, although the “shock and awe” of raids has subsided, the odds of an I-9 audit have dramatically increased, tripling in 2009 over 2008.

Are you ready?

THE BOTTOM-LINE

“I-9s appear simple, but people don’t always understand them or fill them out properly,” says Masha Aliaskari, an immigration attorney with Greenberg Traurig, LLP in Santa Monica. “And, employers have accepted documentation that’s not appropriate because they don’t know the difference or they choose not to pay close attention.”

THE ENTIRE CONCEPT OF SURVIVING I-9 AUDITS BOILS DOWN TO TWO BASIC THINGS:

  • Establishing and maintaining accurate paperwork; and
  • Doing your best to identify legitimate supporting documentation when you see it.

“ICE always says they don’t expect employers to be document police, and they don’t,” Aliaskari says. “But to some extent, you do need to check for inadequacies to make sure that your workforce is in compliance. Sometimes fakes are obvious: “United States” is misspelled, for example. But if the employer deems them reasonable, he or she has a duty to accept the supporting documents.”

THE DESIRED OUTCOME

Aliaskari says that if you’ve performed your due-diligence (as recommended in this article) to the best of your ability and things go well during the I-9 audit (no substantive offenses and minimal or no technical/administrative errors), “chances are ICE will close the case, and there won’t be any ongoing investigation.”

GETTING PREPARED

Although employers can do a lot within the three days ICE gives them to prepare for an inspection, the surest way to clear the hurdle is to establish and follow compliance procedures as a matter of standard business practice.

“Conduct your own in-house reviews,” advises Aliaskari. “Go through all of your I-9s. Make any necessary corrections and follow up on anything that seems ‘off,’ because what ICE is going after are technical violations.

“It’s best to have an expert (qualified attorney, etc.) go through it with you for a few hours to answer questions, safeguard procedures, train your staff, and so forth. You could be saving yourself hundreds of thousands of dollars in the long-run.”

Aliaskari adds that how you present your documentation can have a big impact on the outcome of an inspection. “Prior effort goes a long way with ICE. If your paperwork is well-organized, neat, in a nice binder, etc. when the officer arrives, it really sets the tone for the rest of the audit. It shows that the company takes its responsibilities seriously.”

IF YOU HAVEN'T PREPARED BEFORE RECEIVING A THREE-DAY NOTICE FROM ICE:

  • Contact an immigration attorney. He or she may be able to help you obtain an extension, assist in reviewing and correcting I-9s for technical errors, and accompany you during the inspection.
  • Go through your I-9s and carefully review each one for accuracy. “Even if you’re sure that 100 percent of your workforce is legal, even something as small as an unchecked box on the form could result in a fine,” Aliaskari says.
  • Organize your I-9s into two binders. Purge your retention binder of outdated I-9s.
  • Review your payroll records and be prepared to answer questions regarding anomalies and/or discrepancies. If someone received a paycheck but there’s no I-9 on file for them, consider allowing a skilled lawyer to answer for you.

DURING THE INSPECTION

An audit can cause stress levels to rise, especially if you’ve never been through one. But keep in mind that ICE isn’t there to attack you personally; in fact, it may be just the luck of the draw that they came to your company. Auditors will primarily focus on two sets of documentation: the I-9s themselves, and the company payroll records.

DO'S AND DON'TS DURING AN I-9 AUDIT:

  • DO have the right mindset. Be calm and stay professional.
  • DO cooperate. Demonstrate your willingness to comply with the agent’s instructions, and treat him or her with respect. (This can also help later, especially if you’re facing fines for errors.)
  • DO stay neutral with regard to how employees are treated.
  • DO call an attorney if you haven’t already.
  • DON’T direct anyone to not provide information.
  • DON’T instruct anyone to leave.
  • DO follow the agents and note what happens—especially if something seems wrong or “off.” Log everything the agent gathers.
  • DO ask to make copies of any documentation ICE intends to take with them when they leave. (They don’t have to oblige, but it’s best to ask anyway.)

AFTER THE INSPECTION

Depending on what the inspection turned up, things can go in a number of directions.

Technical Violations: If minor and relatively easy to rectify, ICE may simply instruct you to correct them. But if they’re substantive (next item), ICE may issue a warning notice or even a Notice of Intent to Fine (NIF).

Substantive Violations: For anything more complex than simple administrative mistakes, you will need the services of a qualified attorney.

If the audit turns up evidence of undocumented workers, ICE will send the employer a notice naming the personnel in question along with instructions to terminate them. There is also a dispute process (again, consult with an attorney) for cases where the employer believes the worker to be legally eligible to work and suspects the issue to be caused by an error.

“For employees who are listed in the ICE notice, you want to provide them with the opportunity to present valid documentation,” Aliaskari advises. “If they cannot, and it’s the same documentation they originally provided, then you need to terminate the employee.” Aliaskari also sketches out the worst-case scenario. “After the inspection, if something has caught their attention, their follow-up may turn into a full-on investigation,” she says. “That could include informants, undercover agencies, etc. By the time ICE performs a raid, it could be weeks, months, or even years later. And when they show up under those circumstances, they know who is undocumented. Even if they try to run at that point, ICE already knows where they live, who their friends and family are, etc.”

Bottom-Line Regardless: Get A Lawyer!

RECORD KEEPING

The core rule for ICE compliance is to properly administer and maintain I-9s. These are the basic guidelines for good record-keeping:

  • Keep all original I-9s together.
  • Back-up copies of I-9s are optional but not required.
  • Do not file I-9s with personnel records. Keep them separate.
  • Have one binder for the I-9s of all current employees.
  • Keep a separate “retention binder” for I-9s of all former employees. (These I-9s must be maintained for three years from the date of hire, or one year from the date of termination, whichever is later.)

Use good-quality binders and keep them nice. It shows ICE agents that you take compliance seriously.

Routinely update your retention binder by removing I-9s that you no longer are required to maintain. “This limits your liability,” says immigration attorney Masha Aliaskari, “because when ICE comes in, they’re going to review both current and former employees.”

FOUR MUST-HAVE WRITTEN POLICIES

ICE agents look at several things during an audit, which collectively can indicate a company’s seriousness about following the law. Immigration attorney Masha Aliaskari with Greenberg Traurig LLC recommends employers have the following four policies in writing, “because it shows you’re making a good-faith effort,” she says:

  1. Compliance Policy. Worded to impart the message, “We abide by regulation and conduct internal audits and reviews.”
  2. No-match Letter Policy. “Even though the regs have changed, ICE can use no-match letters from Social Security to show that an employer should have taken more steps to verify someone’s status.” Written procedures when followed help employers quickly address these discrepancies rather than allowing them to be forgotten.
  3. Name-changes. Step-by-step procedures for how your company will integrate new employee names.
  4. Document Photocopies. Whether your company will or won’t make copies of documents presented for I-9s, or other possible forms of record-keeping such as recording numbers (drivers license, etc.).

Expert legal guidance is strongly advised.


DOCUMENT ABUSE

“While conducting internal (non-ICE) client audits of employers who haven’t in the past gotten (or followed) proper legal guidance, a lot of times we see employers over-documenting employees,” notes immigration attorney Masha Aliaskari. “Employers do this with employees whom they think may need to present more documentation because the employer isn’t sure of their status. So, they ask for too much—more than is required for the I-9—and then they attach all of it to the form. This is something employers should definitely not do.”

The M-274 Handbook For Employers (the instruction manual for I-9 compliance) also warns against this, stating, “document abuse occurs when employers treat individuals differently on the basis of national origin or citizenship status in Form I-9s process.”

FOUR TYPES OF EMPLOYER CONDUCT CATEGORIZE DOCUMENT ABUSE:

  1. Improperly requesting the employee to produce more documents than are required by Form I-9.
  2. Improperly requesting that employees present a particular document (as opposed to allowing the employee to choose from his or her legal options as shown on the I-9).
  3. Rejecting documents that reasonably appear to be genuine.
  4. Treating different groups of applicants differently (such as those who “sound foreign”), by requiring certain groups to produce particular documents that other employees are not.

E-VERIFY

To improve accuracy of the I-9 verification process, the U.S. Citizenship and Immigration Service (USCIS) operates an electronic employment verification system called E-Verify. After completing a new-hire’s I-9, employers file certain info online and receive an automated response regarding the worker’s authorization.

For more information and to register, go online to www.dhs.gov/E-Verify

Download Form I-9, Employment Eligibility Verification at: www.uscis.gov/files/form/i-9.pdf

Download M-274, Handbook For Employers at: www.uscis.gov/files/nativedocuments/m-274.pdf

Both can also be ordered by phone by calling USCIS toll-free at (800) 870-3676.