Border czar Tom Homan is putting employers on notice: Expect significantly more scrutiny of who you’re employing and whether your paperwork is in order.
Homan, in a recent conversation with the Center for Immigration Studies, talked about his intention to expand employment verification inspections that would “dramatically increase” worksite enforcement.
“We want to hold employers who circumvent the law responsible,” he said.
This statement is in addition to a number of changes recently made to the Form I-9, Employment Eligibility Verification, which is required by the U.S. Citizenship and Immigration Services (USCIS) within the Department of Homeland Security and which employers generally must complete and retain for employees to verify their identity and authorization to work in the United States.
The bottom line is that immigration enforcement activity is, and will be, of increased concern for employers, and if your company is not in compliance, you could not only face fines but potential civil and criminal charges.
Here is what employers should do.
Audit your employees’ I-9s
“For businesses, the biggest mistake is having no plan at all,” said immigration attorney Kristofer C. Kaufmann of Philadelphia-based Kaufmann & Associates.
Kaufmann encourages his clients to conduct a privileged internal I-9 audit under the guidance of immigration counsel and then create a one-page response protocol that every manager knows.
“The audit tells you what is actually in the files and what needs fixing before the government ever asks, and the protocol tells your people exactly who to call, what to say, and what not to do if agents appear,” he said. “Most small businesses that get into serious trouble do so because they had neither.”
When auditing I-9s, businesses should not try to hide problems, said attorney Zachary Gold, from New Jersey law firm Cruz Gold & Associates, which serves clients in the Philadelphia area.
“Correct mistakes in the open: line through the error, enter the correction, then initial and date it,” Gold said. “Never backdate, which turns a compliance problem into fraud. Good compliance is a folder you can hand an auditor in five minutes.”
He says to keep I-9 records organized and separate enough that they can be produced quickly. Employers should include former employees as they can also be subject to a review, Gold said.
“Run the audit the same way for everyone, and do not start demanding new or different documents based on how a worker looks or sounds, because that trades an I-9 problem for a discrimination claim,” Gold said.
Ricky A. Palladino, an immigration attorney in Philadelphia, recommends going one step further by using E-Verify, an online system that compares an employee’s Form I-9 with records from the Department of Homeland Security and the Social Security Administration.
This step “gives an immediate answer on whether a person is authorized to work and provides electronic updates on when forms need to be updated,” he said.
Create an ICE response plan
So what happens if Immigration and Customs Enforcement shows up at your company’s door? The most important thing is to stay calm, professional, and cooperative but have some guardrails. And the first thing to know is that there’s a difference between an I-9 audit and a raid.
“An I-9 audit, sometimes called a ‘silent raid,’ begins with a Notice of Inspection,” Kaufmann said. “By regulation, ICE must give the employer at least three business days to produce the Forms I-9 and related documents.”
A raid, or unannounced worksite enforcement action, Kaufmann said, “usually involves a judicial search warrant. There is no advance notice.”
Kaufmann advises his clients to designate one or two people in advance to handle any ICE interaction, preferably the company owner or a senior manager. Requesting and verifying each agent’s identification card is also important.
When ICE agents arrive, employers should ask the purpose of their visit and then document all interactions either in writing or video in case questions later arise about what the agents requested, where they went, or what was produced, said Nadine C. Atkinson-Flowers, a Philadelphia-based attorney with experience in U.S. and Jamaican immigration law.
“If things get testy, try to de-escalate tensions so that you and your employees are safe,” she said. “Don’t become hostile. Don’t refuse lawful orders like a request to see compliance documents. Don’t allow ICE to go through private spaces.”
Palladino also warned against giving ICE access to nonpublic areas. “Employers should always ask to see a warrant and review it to determine which part of their premises ICE can examine,” he said.
Gold also recommends understanding the different types of warrants.
“A judicial warrant is signed by a judge and lets agents into the areas it lists,” he said. ”An administrative warrant is signed by an ICE officer, and it does not reach your nonpublic areas without your consent.”
If ICE presses in their search, Gold recommends telling them that you are not consenting and documenting that, too.
“Then, call your attorney,” he said.
Palladino is urging his clients to prepare.
“It’s clear that DHS intends to dramatically increase the number of audits moving forward,” Palladino said. “We’re telling our clients to get ready now. Businesses can be fined for both technical and substantive violations.”
