United States: The Government's Crackdown On Businesses – The Story Continues

Last year, we heard the federal government announce that it would increase the number of raids and site inspections to ensure businesses were going through the proper procedures to hire employment-authorized workers.  Well, we are beginning to see the government live up to its word.

On January 10, Immigration Customs and Enforcement (ICE) agents visited 98 7-Eleven stores in 17 states and in Washington, D.C. in search of undocumented workers and employers who hired them.  The raid ended with 21 arrests, the largest operation against a single employer since January 2017 when President Trump took office.  Then, just a few weeks later, ICE visited 77 businesses in northern California, serving Notices of Inspection that typically give employers 3 days to comply with their document requests.  A raid of this scale devoted to a single region is also unprecedented.

ICE has always been in the business of conducting raids such as these to catch individuals who are in the U.S. without proper status (and therefore has no authorization to work for a U.S. employer).  But after ramping up the scale of their activities, ICE has been in the limelight more recently.  Some experts posit that the goal of these large-scale raids at places of employment is to discourage undocumented workers from showing up to work.  Whereas previously ICE agents typically arrested undocumented workers at their residences, ICE is shifting its focus to place greater pressure on employers who hire such workers.  Indeed, ICE Deputy Director Thomas D. Homan stated following the 7-Eleven raids that this was to "send a strong message to U.S. businesses that hire and employ an illegal workforce.  ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable."  This year, ICE is planning to increase worksite enforcement actions by 4 to 5 times.

Northern California became a regional target due to its reputation for protecting immigrants from the reaches of the government.  But in other places throughout the United States, it seems that there is no particular industry or size of business that ICE is making their priority.  Also, since the agencies enforcing employer compliance have increased their staff by about 4 times, the chances of being audited are greater than before.

It is critically important that businesses take proactive steps to do an internal review/audit of their records before they are visited by ICE (this is because remedying I-9 errors to the extent possible before an audit can reduce the amount and degree of fines).

For starters, ensure that an I-9 Employment Eligibility Verification form is completed for every employee following an offer and acceptance of employment. Even if you completed an I-9 for an employee but it ends up going missing, that is the same as if an I-9 was never completed (and that's a serious violation).   Then, conduct an internal audit of the Forms I-9 with the help of an experienced immigration attorney.  The earlier you examine and assess where your violations lie and identify ways to avoid those violations in the future, the sooner you will begin to eliminate perpetual I-9 errors and thereby reduce the overall penalties should you be faced with an I-9 audit.

An immigration attorney with I-9 experience can also advise you of the difference between certain I-9 violations.  While some errors are considered technical and can be corrected, some are substantive and cannot be remedied after the fact.  Being able to identify what the substantive violations are and taking proper actions to avoid repeating errors in the future is vitally important to demonstrating that the employer has made a good faith effort to comply with the rules.

Lastly, train your workforce so they know how to respond when a government agent pays you a visit.  For example, employees who will be the first to interact with them need to know what information to obtain, and where to direct them.  The designated point of contact needs to know things such as whether the company wants their attorney to handle the situation, where the Forms I-9 are kept, and whether there are any laws or regulations that need to be complied with before any forms are handed over to the government.  An unprepared workforce might be more susceptible to acquiescing to an officer's request prematurely, and other inadvertent mistakes can be committed to the detriment of the employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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