Employment Law

Brace Yourselves, Winter is Here: Tips to Survive an ICE I-9 Compliance Audit

Winter has come to 7-Eleven, as ICE rains down on nearly 100 locations and 17 states across the country.

immigration

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As we previously reported, late last year Acting Director of Immigration and Customs Enforcement (ICE) Thomas Homan instructed Homeland Security Investigations, the investigative unit of ICE, to increase their time spent on worksite enforcement by “4 to 5 times” in this fiscal year.

Additionally, a later internal memo had revealed the enforcement actions would take particular focus on food service and chain/franchise businesses—businesses the agency had already identified, and for which preliminary investigations had been performed. In other words, it was just a matter of those unnamed employers waiting for their knock on the door—or, in the case of 7-Eleven, 98 doors.

Late Tuesday and early Wednesday, 7-Eleven franchises from Staten Island, NY, to Los Angeles, CA, were sent a “strong message” of accountability from ICE as notices of document inspection were served and arrests were made. And according to Derek Banner, a top ICE official, this is only the beginning, as he described the 7-Eleven operation as “the first of many” and “a harbinger of what’s to come.”

Such actions should be of particular concern to California employers, who are now subject to additional duties and limitations courtesy of California’s Immigrant Worker Protection Act (AB 450), which took effect January 1. Under that law, California employers are prohibited from voluntarily granting immigration officials access to review records and, upon receipt of an official Notice of Inspection, must provide notice of such inspection to employees and unions within 72 hours.

Franchise owners should also take particular note, as they—not the corporation—may bear the brunt of such enforcement actions (and the compliance duties necessary to avoid them). In the present situation, 7-Eleven highlights this fact in its response:

Get all your immigration questions answered when you attend: Form I-9 Recordkeeping: How to Complete, Re-Verify, Store, and Destroy Paper and Electronic Files in Compliance with Federal Law, on Thursday, January 25, 2018. Click here, to learn more, or to register today!

For California Employers, consider attending: California Immigration and I-9 Compliance Update: New AB 450 Obligations in Effect January 1, 2018, on Tuesday, January 16, 2018. Click here, to learn more.

“As part of the 7-Eleven franchise agreement, 7-Eleven requires all franchise business owners to comply with all federal, state and local employment laws. This obligation requires 7-Eleven franchisees to verify work eligibility in the U.S. for all of their prospective employees prior to hiring. 7-Eleven takes compliance with immigration laws seriously and has terminated the franchise agreements of franchisees convicted of violating these laws.”

To assist employers and franchisees in preparing for enforcement actions such as these, we’ve reviewed and refreshed the following two-part guidance article, “Tips to survive an ICE I-9 compliance audit.” Any revisions (fines have increased, after all) have been indicated in bold font. For additional guidance, ICE also provides an informative fact sheet detailing the Form I-9 inspection process.

So, what can you do to ensure that you are prepared for a visit from ICE?

What to Expect During an ICE Audit

The first step of an administrative inspection is receipt of a “Notice of Inspection” (NOI), which requires the employer to produce all Forms I-9 within 3 business days. In some cases, supporting documentation such as payroll records, employee lists, and licenses may be required.

After thorough examination of these documents, ICE will issue any of several notices, depending on its findings. The “Notice of Suspect Documents” and “Notice of Discrepancies” are issued when employees are either determined to be unauthorized to work or when a determination cannot be made. Employers will be given the opportunity to present additional documentation to establish employment eligibility—otherwise, employers will be advised to terminate the work relationship.

If errors in the Forms I-9 are found, a “Notice of Technical or Procedural Failures” will be issued, and employers will have 10 business days to correct these errors (otherwise they will become substantive violations.) When the review is complete, a Notice of Intent to Fine will be issued, upon which the employer may negotiate a settlement or request an administrative hearing within 30 days. If no further action is taken, a Final Order will be issued and the employer will be liable for all penalties assessed.

Fines for knowingly hiring or continuing to employ unauthorized workers can reach as much as $16,000 per violation, while substantive and uncorrected technical violations can be as much as $1,100 per violation. What’s more, certain “enhancements” can be added to fines based on business size, history of violation, and seriousness of the violation.

It’s Not All About Immigration

It is important to note that, while civil and criminal fines for employing undocumented workers can be quite extensive, the possibility of a hefty ICE fine is not limited to those who hire unauthorized labor. The fines for technical I-9 violations can also add up quickly. Further, though the new revision of Form I-9 includes an extensive instruction handbookto walk employers through the documentation process, there is significant room for error on this seemingly innocuous form, whether in storage methods, documents accepted, or even proper correction of previous errors.

So, what can employers do to avoid I-9 violations and the subsequent fines? Find out in part 2 of this article.

HollyHolly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.

She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.

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Questions? Comments? Contact Holly at hjones@blr.com for more information on this topic.