While many businesses are working hard to stay I-9 compliant, many still wonder what’s the difference between an ICE raid and an ICE audit? The simple answer is that an audit comes with notice, and a raid comes with an expectation of uncovering wrongdoing. If you’re doing wrong in the current immigration climate, don’t be surprised if ICE comes knocking on your door for one or the other.
The Climate
Immigration and Customs Enforcement (ICE) has quadrupled the number of worksite investigations in the last year, and the wide net has exposed many Employment Eligibility Verification form (I-9) errors. This year is a building year for the agency as it seeks to hire and train more than 3,000 new agents and staff to process and expand its enforcement efforts, so businesses can expect even more scrutiny in the foreseeable future. The goal is to generate a culture of compliance with I-9 laws and regulations under the theory that illegal immigrants will not come to this country if they cannot work. Even honest mistakes on the forms can result in fines, but a pattern of violations may put corporate officers in jail and cost the company millions of dollars in penalties. Since ICE’s focus can be directed at any business for as little reason as an anonymous tip, the safest option is to operate within full I-9 compliance.
ICE Audit
An ICE audit usually begins with an ICE agent or US Marshal and Homeland Security Investigations auditor appearing at the business unannounced with a Notice of Inspection. Once served, a business has three days to produce all of its I-9s for inspection, but the agents will ask if you’d like to waive the three days. Do not agree to waive the three days or produce any information before you have contacted an attorney or other experienced advisor to help you navigate the process and facilitate communications with the agents, preserving your rights along the way.
A proactive business will have anticipated and planned for an ICE visit, designating a representative who knows what to expect and can efficiently lead the company through the audit without allowing panic or chaos to take root. An employee without training or knowledge on how to handle an audit can unwittingly waive a company’s rights or consent to a search. Don’t let poor planning put your business at a disadvantage.
Auditors check for valid I-9s that are complete and accurate. They will also check for technicalities such as whether the employer signature appeared within three days of the hire and whether the correct version of the form was used. Any uncorrected mistake will be tallied, and it’s easy for these to pile up. The administrative courts have been siding with ICE in taking the position that even mistakes made in good faith are eligible for punishment. The only way to avoid them is through solid procedures administered by trained personnel under strict oversight of the process.
ICE Raid
An ICE raid happens with no notice. If agents show up for a raid, they have reason to believe the employer is doing something wrong. A raid may occur after an audit reveals issues with your I-9 procedures, but it is more likely to come as a complete surprise resulting from an investigation in the background. Agents will show up in force, surround the business and execute a search warrant. Depending on the size of the operation, local law enforcement may also participate.
What should the employer do when agents raid?
- Make a list of each officer’s name and badge number.
- If the agents want to search or take documents, they must have a warrant. Review the warrant, make a copy of it and send it to your attorney immediately. Look at the scope of the warrant and ensure that agents do not operate outside the scope. Check that the warrant is signed by a judge and that the other limitations of the warrant such as timing are in order.
- Be polite, do as they say and stay out of their way, as long as they are acting reasonably within the scope of the warrant.
- Do not answer questions or permit agents to speak with employees. If they find undocumented workers, however, they may arrest them.
- Obtain an inventory of what the agents seized before they leave.
- If they arrest workers, get the contact information of the detention center to which they’ll be sent. If you wish to provide counsel for the detained employees, it should be a different attorney than yours to avoid a conflict of interest.
- You are not required to allow media to enter the property, but it can be helpful to have a public relations plan in place to handle them.
An audit can be frightening, but it’s really just an administrative form of checking on I-9 compliance. If you have solid I-9 procedures and stay on top of them, the worst result will probably be a fine for the mistakes you didn’t catch. It’s hard to believe that a business at risk for an ICE raid, however, isn’t aware that it’s doing something to put it at risk. ICE won’t send notice of its intentions, but let this post serve as such—ICE is actively looking for I-9 violations, so don’t give agents an excuse to focus on your business. Working with a company that has I-9 compliance software can go a long way in protecting your business and your employees.