ICE Chills the Summer with Thousands of Audit Notices Issued to Businesses Nationwide

• Service can also be accomplished via certified U.S. mail, return receipt requested. Ensure you have a protocol to have a NOI reach the right party in a timely fashion. For your reference, we have previously provided Quick Guidance: What To Do In The Event of a Visit By The DHS-ICE Agents.
• If in person, the agent will generally deliver the notice and will request to see a manager, or the person charged with Form I-9 duties.  The employee receiving service of the NOI will need to sign a document acknowledging the receipt. It’s ok to sign, you can still keep your first born, I promise.
• The company will then be provided with three (3) days to respond to the NOI, but extensions may be granted with good reason. Those three days will go by very quickly and it is critical that companies use them wisely.
• NOIs should be taken very seriously.  In 2017, the largest judgment in U.S. history was levied against Asplundh Tree Expert Co. for illegally employing undocumented immigrants —the company had to eventually pay a total of $95 million in forfeitures and civil claims.

• Internal Assessment, I-9 Audits, and Remediation.  The Form I-9 is often referred to as “the most complicated 3-page form in America.”  Companies should consider an internal I-9 audit under the direction of experienced counsel.  Before deciding to take on a full audit, however, companies should look at alternatives such as an internal assessment of policies and processes, in conjunction with a sampling of I-9s and E-Verify hygiene, where applicable.  Such a project may be more appropriate and cost effective.  Then, companies can decide if a full I-9 review or broader cross section is necessary.  Either way, the timely remediation of any issues discovered on I-9s is critical. These include, but are not limited to, simple paperwork violations, missing I-9s, expired work authorizations, and fraudulent documents.  Acting on the results is key, and the more serious issues should be addressed as quickly as possible.  Being proactive will reduce fines and penalties and will also establish a good faith defense in the event of an ICE audit.
   
• Review/Establish Policies and Procedures.  Management cannot turn a blind eye to what is happening in the field, and should insist upon compliant practices.  Don’t Ask, Don’t Tell-based immigration policies are something ICE appears to be interested in targeting.  Companies should look at their pre-hire applications, I-9 retention schedules, photocopying policies, Social Security (SS) number-related “mismatch” issues (they are back!), reverification policies and practices, and other relevant processes to ensure compliance with the law. From an anti-discrimination perspective, these policies and processes should be implemented consistently.
   
• Conduct Due Diligence. Whether in the context of a merger, acquisition, or restructuring, understanding the current state of compliance is important. 1. This is particularly important for public companies that could face issues with shareholders over the roles executives may have played in allowing non-compliance to transpire.  Accordingly, in cases where I-9 issues were deprioritized before closing, post deal clean up should be addressed as soon as possible.  2.  Another area of compliance that is often overlooked is performing diligence on electronic Form I-9 systems.  Not all systems are compliant with the electronic I-9 regulations, and ICE is starting to focus on reviewing these systems and fining for flaws.  In fact, the government has recently issued fine notices topping the $10 million mark, where threshold issues include audit trails and digital signatures.
   
• Be Proactive.  Do not ignore government notifications including SS no-match letters, Affordable Care Act health insurance notices, and other unconventional no-match notifications (such as unemployment claims of employees not working at your company), or potential identity theft issues.  Do not ignore existing liability on the books, including individuals whose I-9s indicate that they are unauthorized to work.  Consider the use of E-Verify and other government recommended best practices.  Review IMAGE best practices (https://www.ice.gov/image) and consider attending an HSI IMAGE training.  This program has recently been revamped and is currently offering companies immunity to fines in exchange for joining the program. IMAGE is not for every company and the decision to engage with the government should considered be carefully with counsel. Finally, here are a few quick fixes to reduce exposure:
  • Ensure there is a Form I-9 on file for every active employee;
  • Ensure all Section 3 reverifications are completed where an employee’s work authorization has expired and set a cadence to ensure Section 3 is completed timely; and,
  • Maintain copies of identity and work eligibility documents on a going forward basis (if not already being done).
     
• Invest in Ongoing Training.  While tight policies and procedures can reduce errors, the churn of HR personnel, combined with ongoing updates to United States Citizenship and Immigration Services (USCIS) guidance, make reinforcement of ongoing training, job aids, and in-house subject matter expertise critical.  Aside from imparting technical knowledge, trainings should highlight the importance of the Form I-9 and the need to take the process seriously.  Companies should review free government related online resources and organize an accessible library for their I-9 Administrators while also keeping that space up to date.
   
• Prepare for a Government Visit.  Companies should prepare for a knock at the door by the government.  Regardless of industry or company size, this is an event for which every company should have a plan.

This Management Alert, ICE Chills the Summer with Thousands of Audit Notices Issued to Businesses Nationwide, appeared first on Seyfarth’s Big Immigration Law Blog

¹See, Miriam Jordan’s New York Times article, More Than 2,000 Migrants Were Targeted in Raids. 35 Were Arrested confirming that 3382 Notices of Inspection were issued as of Monday, July 22, 2019. The article also provides key statistics from Immigration and Customs Enforcement.