March 2018

by Philip J. Siegel, Hendrick, Phillips, Salzman & Siegel

Immigrations and Customs Enforcement is an investigative branch of the Department of Homeland Security charged with enforcing the country’s immigration and customs laws. ICE was created in 2003 and took over the responsibility of enforcing the immigration laws from the Immigration Naturalization Service, commonly known as INS. During its first two years, ICE limited its worksite enforcement efforts to sensitive facilities, such as military bases, airports, shipyards, chemical plants and power plants. In 2006, however, ICE shifted its focus toward those workplaces and industries that had been associated with employing large numbers of unauthorized workers. The construction industry was one of the industries expressly made a part of ICE’s focus. Given the increased enforcement efforts of ICE, particularly within the construction industry, it is important that subcontractors know and understand their rights and make preparations for how the company will respond if it is the subject of a worksite raid or if ICE issues a notice of inspection and conducts an audit of the company’s I-9 forms.

The I-9 Audit

ICE verifies employer compliance with I-9 requirements by conducting inspection audits, which are initiated by serving a Notice of Inspection to an employer compelling him or her to produce I-9 documents. ICE may also conduct an audit pursuant to a search warrant or subpoena. Unless ICE has a warrant or subpoena, it is required by law to provide the employer with three days notice to produce the I-9s for inspection and copying (ICE should never be allowed to remove original documents from the employer’s premises). If ICE does have a warrant or subpoena, no advance notice is required and the employer must instead allow ICE to conduct its search in accordance with the scope set forth in the warrant itself. If the employer refuses to comply, ICE can seek judicial enforcement of the subpoena or warrant. Should an ICE investigator appear at a worksite without a warrant or subpoena, subcontractors should know and understand that the investigator cannot demand an immediate production of the employer’s I-9 forms.

One important step is to designate a management representative who is authorized to meet and talk to ICE or DHS personnel. Regardless of whether an ICE investigator appears with a subpoena, the company representative authorized to meet and talk to DHS or ICE personnel should be contacted. Subcontractors also should immediately contact immigration or employment counsel for assistance with the audit.

In the event of an audit, subcontractors are advised to keep their I-9 forms separate from other employment-related documents that are kept within an employee’s personnel file. This is because in the event ICE discovers a possible violation of the law within the Department of Labor’s jurisdiction during the course of the I-9 audit, ICE must contact the appropriate DOL field office.

During an audit, the company representatives should always be polite and assume an attitude of cooperation with ICE and DHS. The designated company representative also should keep records of all information sought by ICE or DHS and the questions the ICE investigator asks. A record also should be kept of the responses given to any questions posed by the ICE investigator. If the ICE or DHS official intends to remove documents from the premises, the company representative should make copies of all documents given to ICE and an inventory should be created that identifies the number of original I-9 forms that were relinquished to ICE.

When the I-9 audit is complete, if the audited employer is found to be in compliance, the notice received from ICE is referred to as a Notice of Inspection Results, or a compliance letter.

On the other hand, if, after its review of the I-9 forms, ICE determines an employee is unauthorized to work, it advises the employer of the possible criminal and civil penalties for continuing to employ that individual. This notice is referred to as a Notice of Suspect Documents. The notice provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.

If ICE is unable to determine a particular employee’s work eligibility, ICE provides a formal Notice of Discrepancies. A Notice of Discrepancies advises the employer to provide the employee with a copy of the notice and to give the employee an opportunity to present ICE with additional documentation to establish employment eligibility.

When technical or procedural violations are found, ICE issues a Notice of Technical or Procedural Failures. This notice gives the employer 10 business days to make corrections. If corrections are not made in a timely manner, ICE determines a substantive violation has occurred. An employer may receive a monetary fine for all substantive and uncorrected technical violations.

If a fine will be issued, ICE publishes a Notice of Intent to Fine to the employer. Penalties for substantive violations, which include failing to produce an I-9 form where retention of the form was required, range from $110 to $1,100 per violation.

If a Notice of Intent to Fine is issued, the employer has 30 days to contest the intended fine by requesting a hearing before an administrative law judge. If the employer requests a hearing, DHS files a formal complaint with the office of the chief administrative hearing officer, and the case is assigned to an administrative law judge. The office of the chief administrative hearing officer then sends all parties a copy of a notice of hearing and the complaint.

If the matter is not resolved in settlement or not disposed of by the judge in response to a dispositive motion, the matter proceeds to a hearing. Following the hearing, a final agency order is issued by the administrative law judge. If the employer disagrees with the decision of the administrative law judge, the employer has 45 days to file an appeal with the appropriate federal circuit court of appeals.

ICE Worksite Raids

A worksite raid is much different than an I-9 audit. While the number of worksite raids has increased in recent years, the total number of raids represents only a small fraction of one percent of the companies in any given industry. ICE worksite raids are not random. Unless you consent to the search, ICE is prohibited by law from raiding a worksite or project site without a warrant. If ICE does have a warrant, the warrant was obtained from a judge after the judge was presented with evidence showing there was probable cause a violation of the law was being committed. Probable cause is defined as a reasonable belief that a crime has been committed. Employers that are the subject of a worksite raid have done something to attract ICE’s attention. For example, those companies who exploit unauthorized workers for financial gain or who act with impunity are likely to be the subject of a worksite raid. Where there is evidence an employer recruits, houses and transports unauthorized workers, that employer is likely to be the subject of a workplace raid.

Employers that are the subject of a worksite raid should carefully review the warrant provided by ICE. The scope of ICE’s search is limited to the scope as set forth in the warrant, and Employers have a right to review the warrant. Employers are not required to answer ICE questions during a worksite raid. Employers should also never give consent for ICE agents to speak with any of the employees on the premises. In the event of a worksite raid, the company’s legal counsel should be contacted immediately.

If during a worksite raid, ICE discovers or learns of unauthorized workers at the worksite, those workers are subject to being arrest and detained by ICE. Subcontractors facing this situation should be sure to obtain from ICE the contact information, including phone number, of the local ICE detention center. Employers should also find out where to obtain contact information for other detention centers in case detained employees are transferred out of the local area. The employer can assist the employees with obtaining immigration counsel, but it is not advised that the company’s attorneys also represent the employees that may be subject to deportation as an unauthorized worker.

Philip Siegel is a partner and shareholder with the firm Hendrick, Phillips, Salzman & Siegel, P.C., whose practice focuses on labor and employment matters within the construction industry. Siegel earned his bachelor’s degree from the University of Michigan and his law degree from Emory University School of Law. He can be reached at (404) 469-9197 or pjs@hpsslaw.com.

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