California Hotel & Lodging Association Enewsletter
When ICE Checks In, Are Employees Checking Out?

Two weeks ago, Immigration and Customs Enforcement (ICE) targeted hotels in San Diego for I-9 audits.  Just two weeks earlier, ICE agents targeted hotels in Galveston, Texas for I-9 audits.  This is not the first time ICE has targeted hotels.  In 2014, Utah-based Grand America Hotels and Reports avoided criminal prosecution by forfeiting nearly $2 million dollars for hiring unauthorized workers. 

Employers need to protect themselves against persistent ICE audits. Last year ICE conducted 6,848 worksite investigations (compared to 1,691 in FY2017), initiated 5,981 I-9 audits (compared to 1,360 from the prior year), and made 779 criminal and 1,525 worksite-related arrests (compared to 139 and 172, respectively). Overall, ICE indicted 72 managers, convicting 49 of them. Businesses were ordered to pay more than $20.4 million in civil penalties, judicial fines, forfeitures, and restitutions in 2018. 

By taking concrete steps now, employers can minimize risk to avoid an invasive ICE raid altogether. Here are five steps employers can take today to ensure extreme vigilance in an era of extreme vetting.

  1. Ensure I-9 compliance policies and programs are in place, up-to-date, and followed.
  2. Complete I-9 forms if any are lost or missing. All current employees hired after November 6, 1986 must have an I-9 form on file. 
  3. Train staff and managers on how to complete a Form I-9, and what actions they should take when they are made aware that an employee may not be authorized to work in the U.S.
  4. Conduct regular internal I-9 audits and remedy identified errors. Employers should have outside counsel conduct periodic I-9 audits as well.
  5. Train a rapid response raid team responsible to immediately contact immigration counsel and employment counsel in the event of a raid.

ICE typically inspects employers’ premises in one of two ways: through an I-9 audit, or through a raid. 

The most common way in which employers might end up interacting with enforcement officials is through an I-9 audit. The agency will initiate an audit through a Notice of Inspection, which asks employers to produce certain I-9s for inspection within three days. In addition to I-9 forms for current and terminated employees, employers will most likely be asked to turn over a list of current employees, quarterly wage and hour reports, payroll records, E-Verify confirmations, SSA no-match letters, and business information, including the owner’s Social Security Number.

If an employer receives such a Notice, employers should immediately contact legal counsel. Once the audit is underway, a typical compliance review consists of an investigator verifying that the employer’s I-9 forms have been properly executed. This includes a review of the employer’s documents to ensure that they are timely completed, they are correctly and entirely filled out, and that the documents establishing identity and employment eligibility are legitimate.

Once the review is complete, ICE will inform the employer of the results. The best news an employer can hope for would be a letter indicating that the company is in full compliance. If only minor violations were found, ICE may issue the employer a notice of technical or procedural failure indicating certain mistakes on forms, giving the employer 10 days to correct them.

If no substantive violations were found, ICE may issue an employer a warning notice without assessing monetary penalties. However, if ICE determines that the employer has substantive violations or knowingly hired individuals not authorized to work in the U.S., it may issue a Notice of Intent to Fine. If this occurs, the employer’s immigration attorney may be able to negotiate a reduction of the fine, payment plan, or request a hearing before a federal administrative law judge within 30 days.

ICE may also issue an employer a notice of suspect documents regarding an employee’s authorization to work, advising the employer of potential penalties if the company continues to employ the individuals listed on the Notice. In such a case, the employer will be given an opportunity to provide documentation to show the employee’s authorization to work. Similarly, the agency may issue a notice of discrepancy indicating that work eligibility cannot be determined for an employee, with an opportunity for that worker to provide documentation showing employment eligibility or face termination. 

Alternatively, ICE may conduct an actual raid, which is significantly more disruptive. To conduct a raid, ICE would first obtain a search warrant.  In order to obtain the warrant, the agency has demonstrated to a judge that it has probable cause to effectuate an unplanned raid.  There is no three-day notice period to gather documents, and ICE agents will not wait for the employer’s attorney to arrive.

The employer should examine the warrant to ensure things are in order (e.g., that the warrant is signed by a judge). The employer should then provide a copy to immigration counsel. Second, monitor the search to ensure the ICE agents stay within the warrant’s scope. Employers should assign a company representative to follow the agents around the premises to record their actions and make a list of company property seized, but the representative should not interfere with ICE.

Third, an employer should be mindful of how its actions could harm the company. No company employee should do anything that might constitute harboring undocumented workers, such as hiding employees, aiding in their escape from the premises, shredding documents, or providing misleading information. Company representatives should not give any statements to ICE agents without first speaking with legal counsel. However, be aware that employers cannot instruct employees to refrain from speaking to agents.
Fourth, employers should track what and who is seized by ICE, providing the list to its legal counsel once the enforcement action has ended. Finally, the employer should prepare to address the media during and after a raid.

When it comes to immigration compliance, extreme vetting can only be countered with extreme vigilance by employers. Through robust internal training, well-developed internal policies and procedures, and internal I-9 audits, employers can protect themselves in an “extreme vetting” era.  


Shanon Stevenson is a partner in the Atlanta office and is co-chair of the firm's Global Immigration Practice Group. Shanon's practice focuses on corporate immigration law in the information technology industry. Fisher Phillips has over 400 attorneys in 34 offices with 33 locations. Learn more at www.fisherphillips.com.

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