On January 10, 2018, in a dramatic show of force, agents of the Department of Homeland Security (DHS) raided 98 7-Eleven stores across the United States. The raids were an effort to verify employees’ legal work authorization after a 2014 investigation against multiple franchisees and managers of the popular chain were alleged to employ undocumented workers in New York and Virginia.
This will probably not be the last time we hear of such raids this year, either. The Associated Press reported that Derek N. Benner, acting head of Immigration and Customs Enforcement (ICE) Homeland Security Investigations said, “this is what we’re gearing up for this year and what you’re going to see more and more of is these large-scale compliance inspections, just for starters.” He went on to say that these investigations will not be limited to “large companies or any particular industry – big, medium, [and] small” will be subject to scrutiny.
Thomas D. Homan, ICE Deputy Directory, said of the raids, “Businesses that hire illegal workers are a pull factor for illegal immigration and we are working hard to remove this magnet. ICE will continue its efforts to protect jobs for America workers by eliminating unfair competitive advantages for companies that exploit illegal immigration.” To achieve this end, ICE is using a three-fold enforcement strategy that includes:
- Compliance through Form I-9 inspections, civil fines, and referrals for debarment, or preventing companies from being eligible to receive government contracts
- Enforcement, through the arrest of unauthorized workers, and
- Community outreach
The last time the threat of such large-scale employment raids made headlines was under President George W. Bush, when ICE agents rounded up hundreds of workers at meatpacking plants, factories, and farms. Political backlash slowed down the raids then, and immigration advocates are hopeful that corporate pushback could achieve the same results under the current administration.
What to do if your company is targeted
If your company is the subject of an ICE investigation, one of two things will happen, with the first being a “raid” of a place of employment. Employees will be interviewed and ICE may arrest individuals under suspicion of being in the U.S. illegally. Property of the business, such as equipment and files, may also be seized. The second type of investigation is a bit less dramatic, where ICE agents service a Notice of Inspection (NOI) to an employer, sometimes paired with an administrative subpoena. The company then has three (3) days to provide the government with its workers completed I-9 forms and any supporting documentation likewise required by the NOI.
The Form I-9 is a form issued by the U.S. Citizenship and Immigration Services (USCIS), which is used to document a new hire’s identity and work authorization in the country. Employers are required to have a Form I-9 on file for every employee hired after November 6, 1986, and compliance with the program is mandatory. Penalties for non-compliance range from paperwork violations for errors or omissions on the I-9 ($216 – $2,156 per form) to violations for “knowingly hiring or continuing to employ” a worker who is not authorized to work in this country ($549 – $4,313 per worker). In some cases, non-compliance may lead to criminal charges for employers with a pattern of violations.
5 things you can do to prepare for a Worksite Enforcement investigation
Here are some recommendations for making sure you are prepared to protect both yourself and your workers from an ICE investigation:
- Conduct an internal audit of your Forms I-9 using outside legal counsel to ensure that:
- The Form I-9 is being completed for all new hires
- Work authorization is re-verified for employers whose temporary authorization is expiring, and
- The Form I-9 is being filled out properly
- Train your Human Resources team on proper Form I-9 completion. Limit the number of people responsible to a primary and a back-up, if possible, and remember that the I-9 must be completed within three business days of hire.
- Have clearly defined written policies and procedures regarding Form I-9 completion, maintenance, and disposal of the forms. E-Verify is a voluntary (for now) program that helps employers ensure legal work authorization for employees; if your company participates in the program, the policies and procedures of E-Verify should cover you here.
- Have a plan in place in case of a visit from ICE agents, whether it is a raid or NOI delivery.
- Mark non-public areas of your workplace clearly.
- Escort agents to a conference room or other public space upon arrival (unless served with a valid search and seizure warrant).
- Call a manager or supervisor to accept service of the NOI.
- California law prohibits employers from providing voluntary consent to immigration enforcement agents to enter non-public work areas, and from providing voluntary consent to immigration agents wishing to access, review, or obtain employee records without a subpoena, judicial warrant, or NOI. Non-compliance with this law can result in civil penalties of $2,000 – $10,000.
- If you find yourself the subject of an investigation, do not try to handle it alone. Fines can add up quickly, so retain outside counsel knowledgeable in immigration-related worksite enforcement. Turn over only the documentation requested to limit exposure and liability and do not agree to fines and penalties without challenging the basis or reasoning behind the fines.
We are The Cedalius Group – the employment background screening company that you can trust. When it comes to your workforce, compliance should always be top of mind. From ensuring compliance with the FCRA where it pertains to your background screening to compliance with federal work authorization requirements, we can help you construct a program that works for you. Our digital I-9 Advantage™ program provides audit-ready reporting and analytics, forensic quality audit trails, instant error checking, and instant E-Verify® submission, among other helpful features. Call us today at 404.963.9772 or visit us online to learn more.
The Cedalius Group offers insight into the background screening industry for educational purposes. We always recommend you consult with your legal counsel to determine practices that best suit your business needs.