Get Your I-9s in Order – ICE Service Notices to 122 Southern California Companies-Are California Employers Being Targeted?

By: Bernard P. Wolfsdorf, ABIL Lawyer and Of Counsel Attorney, Amy Lynne Pucker
Wolfsdorf Immigration Blog

During a targeted five day period at the beginning of February, ICE’s Homeland Security Investigations (HSI) Agents served 122 Notices of Inspection (NOIs) to businesses in the greater Los Angeles area.  This followed the highly publicized serving of NOIs on 77 businesses in Northern California in January.  It is clear that companies in California are operating in a climate of increased and stricter enforcement.  While the increased level of scrutiny of Corporate Immigration Compliance and Enforcement is a nationwide priority for the Trump Administration, particular attention and resources are being focused on California following the passage of the Immigrant Worker Protection Act (AB 450) which was signed into law in October of 2017 by Governor Jerry Brown and which took effect on January 1, 2018.  AB 450 provides protections for employees in California. Acting Director of ICE, Thomas D Homan has issued a chilling warning to California to “hang on tight” as he threatened a crackdown on so-called sanctuary cities.

During the 5 day targeted operation in addition to the 122 NOIs served on local businesses, ICE’s Enforcement and Removal Operations (ERO) arrested 212 individuals for violating U.S. immigration Laws.   Following these arrests Homan said “Because sanctuary jurisdictions like Los Angeles prevent ICE from arresting criminal aliens in the secure confines of a jail, our officers are forced to conduct at large arrests in the community, putting officers, the general public and the aliens at greater risk and increasing the incidents of collateral arrests”

Under Federal Law, employers are required to verify the identity and employment eligibility of all individuals they hire using the Form I-9, The Employment Eligibility Verification Form. Form I-9 must be timely and properly completed and retained for a proscribed period of time and made available to ICE if requested. While the Form I-9 appears to be simple and straight forward, in reality, proper completion can be quite tricky and simple mistakes can result in substantial civil fines and criminal liability.

NOIs alerts a company that ICE is going to audit their I-9s and hiring records to determine if they are in compliance with the law.  Employers are required to produce their I-9s within three business days, after which ICE will review the forms and payroll records to determine compliance.  If it is found that the company is in violation of the law, they can face civil fines and potential criminal prosecution.

Since the adoption of the Form I-9 as part of IRCA in 1986, the use of the I-9 audit  to address illegal immigration has come in and out of favor depending on the enforcement strategy and priorities of the current administration. The Bush Administration approach had been high profile raids. The Obama Administrations initial strategy for stemming illegal immigration was focused on I-9 audits rather than raids but in the last years backed off and focused on removing actual criminals not workers.

The Trump Administration is doing it all.  “HSI is using a three-prong approach to conduct worksite enforcement, compliance through I-9 inspection and civil fines, enforcement through the criminal arrest of employers and administrative arrest of unauthorized workers and outreach thorough the ICE Mutual Agreement between Government and Employers (IMAGE ) program.  In all of FY2008, ICE issued only 503 notices in contrast to the 3127 NOIs issued in FY2013. IN FY2017 ICE conducted 1,360 I-9 audits  and made 139 criminal arrests and 172 administrative arrests.

The emphasis now is not only on subjecting companies to civil fines, but ICE in conjunction with the U.S. Department of Justice is pursing Employers for “knowingly hiring” employees that are not authorized to work in the US.  The term “knowingly” includes not only actual knowledge but also “constructive knowledge” which is knowledge that may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.

All Employers, especially those in “sanctuary“ states such as California need to be prepared for a visit from HSI and ICE.

Here are five pro-active steps Employers can take to ensure they are prepared for the increased scrutiny by ICE.

1. Designate a contact person in your business to talk to ICE or any USCIS agents. Make sure that you designate an alternate contact person for times when your primary designee is out of the office. If you have multiple locations, make it clear to the supervisor/manager at each location that s/he needs to contact the designated person to inform him/her that ICE is at the premises
2. Ensure that only trained I-9 administrators complete Forms I-9 and provide for a secondary review of Forms I-9. Make certain that you are using the current version of the Form I-9. USCIS I-9 Central has the most recent version of the form and information on how to complete the form.  http://www.uscis.gov/I-9-central
3. Organize your Forms I-9. Never keep I-9’s with personnel files.  Organize in 3 categories.  I-9’s for current employees, I-9’s for employees with expiration dates that require reverification, I-9’s for terminated employees that require purging/destruction at the appropriate time.
4. Establish an internal training program, with annual updates on how to manage completion of Form I-9, retention and updating of Form I-9, how to detect fraudulent use of documents in the I-9 process. Conduct an Internal Form I-9 Audit right away.Internal I-9 audits can be done by an immigration lawyer, an external auditing agency  or a trained employee not otherwise  involved in the I-9 process. Arrange for annual I-9 audits.
5. Figure out your obligations under Immigrant Worker Protection Act impact California (AB-450) so that you are prepared in the event of an audit. This new law puts California employers in a tough situation, as they are now required to comply with California law, and provide notice on any Form I-9 inspections or audit performed by U.S. Immigration and Customs Enforcement (“ICE”).  California employers face harsh penalties for failure to provide this notice. See Wolfsdorf Rosenthal LLP’s blog entry from February 15, 2018 for further details on the impact of AB-450.

Now is the time to get ready. Immigration is a key issue for Trump and his administration. Enforcement actions are on the rise and will not slow down anytime soon, especially for “sanctuary” cities and states.