Under the Obama administration, the U.S. Customs and Immigration Enforcement (ICE), which is part of the U.S. Department of Homeland Security, is targeting the employers who hire undocumented workers.
By law, all employers are required “to verify the identity and employment eligibility of all individuals hired in the United States,” according to ICE. This is done through the Employment Eligibility Verification Form I-9, and ICE has identified form I-9 audits as its most important administrative tool in building criminal cases and bringing employers into compliance with the law. Employers need to be sure all I-9 forms are properly maintained, logically organized, and easily accessible.
If they haven’t already, employers need to develop training programs for hiring managers, human resources personnel, and anyone else in the company who is responsible for completing I-9 forms. After training, those responsible for completing the forms should know how to properly fill them out, understand which documents are considered acceptable, and be comfortable determining whether documents reasonably appear to be genuine. Whenever possible, employers should limit the number of staff authorized to complete I-9 forms to ensure consistency and reduce the need for training.
Organizations should also periodically conduct internal audits in order to find any weaknesses in the system before the federal government does. By randomly pulling I-9s and reviewing them for accuracy, employers can determine whether the forms are being properly completed and filed.
Along with reviewing training and spot-checking I-9 forms, employers need to develop an action plan about what to do when someone from ICE visits.
First, designate someone to serve as the point person for any interactions with ICE agents. This person should receive specific training on how to respond appropriately to any questions or requests for information. This person should also understand the importance of immediately contacting the company’s in-house counsel or outside attorneys as soon as anyone from ICE makes contact with the organization. The agency must give a three-day-notice in order to look over the records. If ICE officials show up without notice and request to review records, employers can, and generally should, request the time to make the paperwork available.
It is a different matter from a routine audit when ICE comes with a search warrant and the intention of seizing records and interrogating employees. If the company representative is not on-site, another employee should stay with the investigators throughout the search until the representative and legal counsel arrive.
ICE has made its priorities clear—with this type of forewarning, employers would be wise to take the opportunity now to ensure they are in compliance with all hiring regulations. Consulting with legal counsel, auditing paperwork, and providing training will help ensure that a routine audit won’t turn up any unpleasant surprises that can lead to bad publicity, fines or even jail time.
Richard Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the U.S. Department of Labor and the National Labor Relations Board.