The Next Wave of I-9 Audits by ICE

[Editor’s Note: In response to the recent reports in the media regarding the latest wave of I-9 audits from ICE, today’s article is guest authored by Kevin Lashus and Amy Peck, of Jackson Lewis, LLP.]

It always begins the same way.  A client calls.  They’ve been visited by two Immigration and Customs Enforcement (ICE) agents and an auditor—unannounced—who deliver a Notice of Inspection.  The Notice doesn’t just ask for the Forms I-9 and photocopies of supporting documents, but also includes a request for business information, the most recently filed 941, a copy of temporary services contracts, an active payroll roster, and time and attendance information.  The Notice also asks for information about their electronic I-9 software system, and asks for a demonstration.  The client doesn’t know whether they can pull all of the information together in time—the forms are in boxes, in closets, or in the personnel files, and they don’t know if they have them all.  They ask whether they should be anxious about whether the review will turn into a criminal investigation, how to address the review with the workforce, what will happen if ICE demands that some of the employees be separated . . . what will they do if some of the workers don’t show up the next day . . .

Then, you get another call from a different client.  You call your partners: are they getting calls from their clients being audited too?

So, it begins: another ICE wave—this one, like some of the ones before it, occur right before a holiday weekend, near the end of the quarter of the fiscal year.

We have to remember, that very much like us, ICE has a set of priorities—things that must be completed over other things that should be completed.  Every once in a while, management sends word that one of those should-be items needs to be reprioritized for reporting purposes: the Secretary or the Director is going to have to report on the progress of the many law enforcement initiatives, and the easiest way to report progress is by identifying numbers . . . ICE MUST be doing a better job in employer sanctions BECAUSE they increased the number of audits . . . and, so it goes . . .

As we near the end of the Government’s fiscal year (September 30, 2013), those of us who exclusively focus on employer sanctions defense have been able to confirm that ICE served a significant number of notices of inspection and administrative subpoenas during the last week in August and the first week in September 2013.  There is no pattern; no one industry or region—just numbers.  We often say that there is no way to minimize risk—you can just minimize exposure because of the “randomness” of these inspections.

The best defense is to be prepared.  Educate yourself and your business partners about what it would mean to be served with a Notice of Inspection.  How would we react?  Would we be caught off-guard?  Would we have an action plan that we could confidently implement to minimize the disruption of our business operation?  Do my business partners know of the potential penalties?  Do they know we could lose our ability to contract with the federal government?  Do they know we could lose our ability to participate in E-Verify, and what impact would that have on our ability to do business in states where E-Verify is required?

Until the Government listens to business, and as long as the immigration system is broken, I-9 inspections are going to be a mainstay.  The Legislature has been more than happy to provide DHS with increase funding for worksite specialists and auditors.  So, it’s only a matter of time before you’re served with one.  Will you be ready?

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Kevin Lashus is the Managing Partner of the Austin, Texas office of Jackson Lewis LLP.  Mr. Lashus is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.  He focuses his practice on corporate employment verification compliance and inbound business immigration.

Amy L. Peck is a Partner in the Omaha, Nebraska office of Jackson Lewis LLP.  She dedicates her practice exclusively to immigration law. Ms. Peck currently is handling numerous I-9 Notices of Inspections for clients, and is conducting I-9 compliance audits for organizations across the country.