ICE is the federal agency charged with the enforcement of the employment verification provisions enacted by the Immigration Reform and Control Act (IRCA) of 1986. Its current strategy, according to Derek N. Benner, Acting Executive Associate Director for ICE’s Homeland Security Investigations (HSI) Division, is to focus on criminal prosecutions of employers that knowingly break the law and to use I-9 audits and resulting civil fines assessed against employers as tools to encourage compliance with the law.
Considering the significant increase in enforcement since the start of fiscal year 2018, the strategy appears to be working. In the seven months between October 1, 2017, and May 4, 2018, ICE initiated a total of 2,282 I-9 audits—a number that is up 60 percent from the previous fiscal year. The agency also made 594 criminal arrests and 610 administrative worksite-related arrests, roughly four times the number of arrests made in fiscal year 2017.
According to Benner, ICE is planning another wave of I-9 audits this summer, which will likely bring the total number of investigations to more than 5,000 by the end of fiscal year 2018. The agency’s ultimate goal, if it can secure funding and support from the Trump administration, is to open as many as 10,000–15,000 audits a year and to instill in employers a “reasonable expectation” that they will be audited.
Given the agency’s goal to audit many more companies regardless of size, location, or type, now may be a good time for employers to conduct internal reviews of their I-9 files and compliance processes, train hiring personnel on proper I-9 verification, correct any compliance deficiencies to the extent possible, and make sure employers know their rights in the event of a worksite visit. Employers may also want to take proactive steps to develop policies and procedures to follow in the event of a worksite inspection so that they are better prepared to effectively assert their rights and protect their interests. Here are some considerations employers can keep in mind in the event of an ICE visit:
- Employers may ask ICE agents to identify themselves and obtain their names and business cards.
- If ICE has a search warrant, employers may ask to review the warrant. If there is no search warrant, ICE cannot enter the premises without the permission of an authorized representative.
- Upon ICE’s arrival, a company should consider notifying the appropriate corporate officer(s) and provide them with a copy of the search warrant. Time is of the essence because ICE is not required to wait for counsel to arrive before beginning its search.
- Employers should remember that if ICE demands to review I-9 forms, the agent must produce a notice of inspection (NOI) or an administrative subpoena and that ICE must give an employer at least 72 hours to turn over I-9 documents.
- If ICE serves a NOI or subpoena, an employer may want to notify the appropriate corporate officer(s) and provide them with a copy of that document. Again, time is of the essence because ICE tends to be strict with enforcing the 72-hour deadline.
- Employers may want to appoint a designated staff member to be the primary point of contact for the government agents conducting the investigation. Ideally, the designated staff member would be someone who is familiar with the employer’s immigration records and procedures so he or she can answer basic government questions. Employees can direct all inquiries and requests from ICE agents to the designated point of contact.
- An employer may deny ICE access to nonpublic areas of the employer’s property if ICE does not have a search warrant. In fact, employers in California are prohibited by state law from permitting ICE agents to access nonpublic areas without a warrant and from sharing personnel records (including I-9 forms) with agents without a warrant, subpoena, or NOI.
- Employees are not required to give any statements to ICE officers. But if an employee is to be interviewed as a representative of the employer, the employer has the right to have counsel present during any such questioning.
- Employers may want to take detailed notes of all activities being performed by the visiting government officials. If ICE agents remove documents or items from the premises when executing a search warrant, employers may want to take notes of what was removed and request an inventory list from the ICE agent.
- ICE agents may not insist that an employer representative remain in a specific location or office unless ICE has detained or arrested that person based on probable cause or an arrest warrant. Thus, the employer representative may legally shadow the ICE agents as they execute the search warrant, so long as the representative does not actively interfere in the agent’s execution of the warrant.
Ogletree Deakins, Manna and Mueller Publication May 2018