What to do if ICE knocks on your door…

Immigration is a hot topic whether you have an opinion on it or not.  And most people do.

This isn’t a post to comment on to build or not build a wall, but to deal with the reality that immigration scrutiny is on the rise for businesses.  Are you prepared as a business leader for what that means?

One reality is that it is harder to get and keep visas for those who are not U.S. citizens.  One proposed change being discussed to H1-B Visas is to limit them to only positions that have a minimum salary of $130,000 a year.  

And while this is scary, especially for companies that rely on foreign labor to meet their business objectives, another scary reality is that ICE (Immigration and Customs Enforcement) audits are on the rise.   

According to ice.gov:

In fiscal year 2018, HSI opened 6,848 worksite investigations compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively; all of these categories surged by 300 to 750 percent over the previous fiscal year.

In addition, fines for audit violations have gone up.  You can see the fee schedule here.

So what should you do to have things in order in case ICE shows up at your workplace for an audit?

  1. Know that you will have three days (see caveat below) to produce all I-9s for all employees and all terminated employees back three years.  In addition, you’ll be required to provide payroll records.  Keeping an accurate I-9 file and purging this file regularly when the record retention period ends is important.
  2. Make sure your contractors are actually contractors per the IRS standards.  Use this checklist here.  If they aren’t, and ICE views them as such, you could be required to provide an I-9 for them.
  3. Know who the key record keepers are for this information and make sure they understand the audit process and what will be required of them if ICE shows up.

So if ICE shows up, what should you do?

  1. ICE will ask you to sign a three-day waiver, requesting you produce the documents requested within three days.  Do NOT sign it.  This can be negotiated.
  2. Call your attorney.  This is not something where a do it yourself approach is recommended.
  3. Keep ICE being on site as confidential as possible.
  4. Realize that if there are findings/violations, handling these can take years.  It isn’t a quick process.
  5. Know that once you get a response about findings, you can negotiate with ICE on the fines. Call your attorney about this.

In this new age of immigration hyper-focus, it is not an issue of ICE isolating certain industries that are suspected of having a high population of non-authorized workers.  The scrutiny is across industries.

Are you ready for an ICE audit if you are subject to one?

Mary Ila Ward

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