President Trump has made his opinions on immigration clear (see here, here, here, and here) and as of January 10th, he has started to execute his immigration enforcement measures with the 7-Eleven ICE raids. If you've totally missed the news, here is a summary of the 7-Eleven raids but the key facts go as follows: On January 10, 2018, 98 7-Eleven stores nationwide were raided by ICE resulting in 21 arrests of alleged undocumented workers. Needless to say, it is suspected that more raids are to come, probably in industries known to have immigration issues like food service and construction. Allow me to go ahead and answer some of the questions in your head...
Who is ICE and why are they knocking at my door?
ICE stands for the U.S. Immigration and Customs Enforcement agency. (Not to be confused with this or this). ICE has the authority to conduct workplace audits related to compliance with federal immigration laws, including the infamous Form I-9. If ICE shows up to your place of business with a Notice of Inspection, you need to get you ish together within 3-days and provide the requested documentation (usually copies of payroll, list of current employees, business licenses, and all Form I-9s). Failure to comply can land you on the Fed's naughty list, as well as lead to monetary fines and penalties of up to $1,100 per violation. If ICE determines you have knowingly hired and employed undocumented workers, you could be paying fines ranging from $375 to $16,000 per violation, with the heftier fines reserved for repeat or really really bad offenders. In other words, when ICE is at your door, you need to put on your Game Face.
ICE is inspecting my business! What do I do?!
As mentioned above, ICE is typically going to ask for documents related to immigration and employment and will almost always ask for all your Form I-9s. You will typically have 3 days to comply with this request so hopefully you're organized. Recall that a Form I-9 is required for each employee in your organization and must be retained for three years after the date of hire or one year after the date of termination, whichever is later. Here is a worksheet that can help you figure this out.
Pro tip: Make sure you make a copy of all your Form I-9's submitted to ICE (and any other requested documents) just in case something gets lost in transit. I also hear ICE gives brownie points for being nice to their agents.
Should I assume the worst and prepare for an ICE inspection?
If you're a 7-Eleven, I'd say that's a hard yes. If you are in industries such as food service or construction, I'd also suggest yes. For everyone else, its never going to hurt your organization to prepare for an ICE visit since you never fully know when and where they may be lurking.
Here's some tips to prepare:
1. Do it right the first time. This means filling out I-9s correctly upon each new hire. If you want help with this task or have questions, ask me or another attorney or an HR consultant, or self-learn here.
2. Audit, Audit, Audit, then Audit again. Annual self-audits can help you identify discrepancies or issues with current I-9 forms and allow you the time and energy to make corrections (more on this in #3). These audits can also help pinpoint where or when training may be necessary for employees filling out the Form I-9. For example, you may notice that all employees hired under Manager X have issues with their Form I-9s so Manager X could probably use a refresher. Also make sure your audit pool is non-discriminatory and fair/balanced. This can be done by assigning each employee a number and drawing numbers out of a hat. Auditing only non-U.S. citizen employees is no good and can lead to allegations of national origin discrimination among other federal laws.
3. Correct the problems in a transparent manner. Key word: transparent. During your audit, you may notice issues with a Form I-9. You can correct these issues, so long as the correction is done as an amendment to the form. In other words, you should not fill out a new form but instead correct the current form. The best way to do this is to attach a document showing the date the issue was identified, who identified the issue, the date the correction was made, and a detailed description of what is corrected.
If the issue is improper identification, you should give the employee at issue a reasonable amount of time to produce a proper document. If no such document can be produced, the employer needs to terminate that employee immediately to avoid "knowingly hiring or employing" an undocumented worker (recall those hefty fines described above for known violations). Failure to do this is only going to make things worse.