By James K. Larsen, Attorney

When Immigration and Customs Enforcement (ICE) director Thomas Homan called for a 400 percent increase in worksite enforcement, ICE responded in dramatic fashion. ICE agents raided close to 100 convenience stores throughout the United States in January and served Notices of Inspection for Forms I-9 on 77 businesses in northern California in February.  Yet these recent enforcement activities may represent only the “tip of the iceberg” in the government’s efforts to target undocumented workers and the employers who hire them.  Employers must take note and prepare now for an unexpected visit from ICE.

Within as little as three business days after notice of inspection, employers must provide ICE with the company’s Form I-9s, payroll rosters and other information relating to the employer’s verification policies and procedures.  Fines can range anywhere from $220 to $2,191 per form for paperwork violations with potential for additional civil and criminal penalties for the “knowing” employment of undocumented workers.

Rather than wait for ICE to come knocking, employers should prepare now for a potential site visit by implementing the below tips and strategies.

1. Organize all Form I-9 records and ensure they are easily accessible, whether stored in paper format or electronically. This will not only save time if inspected, but will also put employers in a better position to conduct internal audits when necessary.
2. Check the company’s payroll roster against the Form I-9 records to ensure a Form I-9 has been completed for every active employee hired after November 6, 1986. This is extremely important. Employers must have a Form I-9 on file for every employee hired after that date.
3. Check to ensure that a Form I-9 is on file for all former employees that were hired within the past three years. Employers are required to keep record of all former employees up to the previous three years; this includes the previous employees’ Form I-9.
4. With the assistance of qualified immigration counsel, conduct a pro-active Form I-9 audit to identify and correct any deficiencies. It’s strongly recommended that all employers receive Form I-9 compliance training and participate in an audit to find and correct any correctable deficiencies before ICE does.
5. Develop and communicate an action plan for employees to follow if a Notice of Inspection is ever received. This tip is often forgotten.  Frequently, employers are caught unaware and unknowingly hand over original Forms I-9 and make statements without first speaking with HR or management or their immigration attorney. At a bare minimum, all employees should be trained to review the Notice of Inspection to make sure the correct employer is identified on the Notice and get the name and contact information of the ICE agent and, before answering any questions, contact the HR/Company Management immediately. The company representative should then immediately contact the company’s immigration attorney so the attorney can advise and handle all communications with the ICE agent moving forward. Staff members should be trained that they should never agree to waive the standard three-day notice period and provide the original Forms I-9 and any supporting documentation without first consulting with immigration counsel.

It is easy for Form I-9 compliance to take a backseat to other pressing matters requiring an employer’s attention on a daily basis.   However, the uptick in ICE enforcement activity and the government’s emphasis on the President’s “Buy American, Hire American” policy suggest that employers should implement the above strategies sooner rather than later.  Giving Form I-9 compliance higher priority within the organization could reduce both the liability and the stress created should the government appear at your worksite.

Additional information regarding employer preparations for worksite visits by ICE will be provided at Foster LLP’s Spring Seminars in Austin, Texas on March 1, 2018 and in Houston, Texas on March 6, 2018.