All employers may be forced to verify to Immigration and Customs Enforcement (ICE) or other authorized government officials that all of their employees are legally allowed to work in the U.S.
Federal officers may inspect an employer’s Form I-9—or Employment Eligibility Verification—for all employees. Generally, employers will receive a written Notice of Inspection (NOI) at least three days before the inspection. Officials may inform the employer of the inspection in person or by certified U.S. mail. However, officials can also use subpoenas and warrants to immediately inspect the forms. Employers should contact immigration counsel immediately upon receiving a Notice of Inspection.
Form 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. All U.S. employers must complete Form I-9 for each person they hire in the U.S. and make it available for inspection.
Officers authorized to conduct I-9 inspections include those from:
- ICE’s Homeland Security Investigations (HSI)
- Immigrant and Employee Rights Section (IER) of the Department of Justice
- Department of Labor
If an I-9 inspection shows an employer is not in compliance with the law, the employer may face civil or criminal penalties. Employers who have sponsored employees for H-1B status must have their Public Access files ready for inspection by authorized government officials as well.
During a Form I-9 Inspection
When officers arrive for an inspection, the employer should have already worked with counsel to prepare so that counsel can:
- Provide Form I-9 and other documents requested for the specified period of time.
- Provide any hardware and software needed to inspect electronic documents.
- Make available any electronic summaries of the information on the Form I-9.
Employers who refuse or delay an inspection may be subject to fines or legal action.
In California, a law that went into effect on Jan. 1, 2018, 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 on July, 4, 2018, 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.
The court allowed the remaining provisions of the law—called the Immigrant Worker Protection Act—to remain in effect. that requires employers to notify affected employees of record inspections within 72 hours to remain in effect.
Before a Form I-9 Inspection
The Alcorn Immigration Law team recommends employers take the time to conduct a full internal preventative 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.
- I-9s are retained.
- All employee information is consistently updated and reverified.
- Your company has proper I-9 procedures in place.
- Your staff receives training for I-9 compliance procedures.
For More Information
In this age of increased immigration enforcement under the Trump administration, it’s more important than ever that your company is in compliance. The Alcorn Immigration Law team can assist with internal preventive audits and represent employers during inspections. We can educate your management team and help create internal policies for how to handle an inspection or raid. We can also clarify the duties you have to your employees. Contact us.