With heightened concern about immigration and searches for undocumented aliens, what should you do if Immigration Officers (ICE) visit your business?
While a warrant is needed for federal officers to search your business and workplace, no warrant or subpoena is required to inspect an employer’s I-9 (Employment Eligibility Verification) forms for its employees. However, advance notice (3 business days) is required for an I-9 inspection. And you can generally negotiate for additional time. The process starts when ICE sends a ‘Notice of Inspection’. The Notice may also ask for a copy of your payroll, a list of current employees, your Articles of Incorporation and any business licenses.
It is strongly recommended that you insist on the required advance notice and not consent to any government searches by U.S. immigration officers who simply show up at your workplace. It is also probably best if you arrange to bring your company I-9 records to the local ICE office for them to review and avoid having ICE agents come to your place of business. If, however, ICE insists on an onsite inspection, try to have the inspection conducted in a meeting or conference room away from the main workforce since ICE inspections can be very intimidating to your staff.
Of course, if ICE shows up at your place of business with a subpoena or warrant, you are legally obligated to comply with the specific directions of the subpoena or warrant. Make sure you obtain a copy of the warrant and try to monitor the search to determine if there are any issues with the search that can be contested afterwards. Also, make sure you reach out to an experienced immigration attorney immediately. Since the penalties for missing or defective I-9 forms can be extremely high, it would be a good idea to have an attorney who can assist you through the process and intervene on your behalf.
A company’s best defense to any interaction with an immigration officer is to have as strong a compliance program as possible. This includes reviewing and updating the company’s I-9 policies annually to making sure that your I-9 forms and supporting evidence are obtained timely and accurately. All employers in the United States must complete an I-9 for each employee hired after November 6, 1986, and obtain appropriate documentation that the employee is actually eligible to work in the United States. The United States Citizenship and Immigration Services office just revised the I-9 form. This new form must be used for all new hires starting on January 22, 2017. Employers must keep this form for 3 years after employment begins or for 1 year after employment ends. While employers are not expected to be “document police,” it is important to check for inadequacies and deficiencies to a reasonable degree to insure that your workforce is in proper compliance with federal regulations. If employers provide convincing, but false documentation, they will typically not be responsible for supporting documents that appear to be reasonably genuine and bona fide.
That said, non-compliance could result in steep fines for uncorrected technical violations as well as potential criminal prosecution for employing and concealing undocumented workers. However, so far, most immigration inspections have resulted in Warning Notices or payment of a negotiated civil fines as opposed to criminal prosecution. Civil fines for technical violations or failure to produce the Form I-9 for each employee range from $110 to $1,100 per employee. And, the penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $16,000 per employee. With such high stakes, be mindful of your rights and potential liabilities, and consult with an experienced immigration attorney to make sure you’re on the right path.
Neil Weinrib specializes in immigration law and has been recognized as a SuperLawyer in that field.
He is the founder and managing attorney at Neil A. Weinrib & Associates
291 Broadway, New York, NY 10007
Tel: (212) 964-9282 Email: firstname.lastname@example.org