A company recently retained the Alcorn Immigration Law team after it received notice that U.S. Immigration and Customs Enforcement (ICE) would audit it for compliance with federal employment-verification laws.

We worked with the company’s human resources personnel to collect and organize all the requested documents:

• Form I-9s for all current and some past employees. An I-9 verifies the identity and the ability of an individual—both a U.S. citizen and noncitizen—to legally work in the U.S.
• Payroll records.
• California quarterly wage reports.
• Spreadsheets containing employee information.
• Complete an employer questionnaire provided by ICE officials.
• The company’s Articles of Incorporation, if applicable.
• E-Verify information and communication with the U.S. Social Security Administration. E-Verify is an internet-based system that enables businesses to check whether employees are eligible to work in the U.S.

Because the inspection notice initially caught our client off-guard, here are three things we want you to know.

1. Federal Law

Agents from ICE’s Homeland Security Investigations (HSI) served our client with a Notice of Inspection (NOI). The notice stated agents would return in seven days to collect and review the documents above. Seven-days notice is generous. The law only requires three-days notice.

This year from January 29 through July 20, HSI served more than 5,200 businesses with NOIs. In contrast, during the entire 2017 fiscal year, which runs from October 2016 through September 2017, HSI served 1,360 businesses with NOIs.

2. California Law

In California, a law called the Immigrant Worker Protection Act (AB 450) went into effect on Jan. 1, 2018. That law prohibited employers from voluntarily giving immigration officials access to private employee records or to non-public areas of an office without a subpoena or a warrant signed by a judge. However, a U.S. District Court judge issued a preliminary injunction earlier this month, putting those portions of the law on hold. The court found that those provisions discriminate against California employers who wish to cooperate with immigration officials.

However, the court allowed the remaining provision of the law to remain in effect. That provision requires employers to notify affected employees of record inspections within 72 hours of receiving a notice.

3. Be Prepared

We recommend employers conduct a full internal I-9 audit. Either your human resources team or an immigration lawyer should make sure that:

• Form I-9s are accurately and correctly filled out.
• The I-9s are retained.
• All employee information is consistently updated and reverified.
• Delete or destroy I-9 forms for employees no longer employed by the company.
• Your company has proper I-9 procedures in place.
• Your staff is trained on I-9 compliance procedures.

We Can Help

The Alcorn Immigration Law team assists employers with internal audits of immigration and employment documents. We can educate your staff and help you create internal policies for how to respond to an inspection or raid. Results of an I-9 inspection will vary depending on the facts in each case. We can also clarify your responsibilities to your employees. Contact us for a consultation.