With changes in federal administration, industries such as restaurants, meat-packing, construction, and hospitality in Texas—being the largest US-Mexico border state—can anticipate increased scrutiny from Immigration and Customs Enforcement (ICE).
ICE is expected to intensify workplace audits to verify the employment status of workers in these sectors. To ensure compliance with federal labor laws, it's crucial for employers to understand what an ICE audit entails and how to effectively prepare for one.
Summary of Recent Executive Orders
It's important to note that ICE can audit employers of any size or industry under existing US law. During the first Trump administration, ICE employment audits nationwide quadrupled between 2017 and 2020.
During a typical ICE audit, agents will check I-9 verification forms for employees. According to US government data, 76 percent of all forms have at least one error that results in an administrative penalty of up to $1,862 per form.
One of the first executive orders signed by President Trump related to employment requires enhanced vetting and screening of foreign-born employees. All refugee resettlement efforts have been rescinded via an executive order, and the CBP One app has been eliminated. Even though there has not been an executive order issued that relates explicitly to I-9 verification and employment, it is expected that ICE will begin conducting more workplace audits in the coming months.
What an ICE Audit Entails
It's crucial to understand that ICE workplace audits are a legal process. Employers should consult with an immigration attorney to gain a complete understanding of their rights and responsibilities regarding workplace policies and compliance with audits. ICE has the legal authority to request I-9 forms and other employment documentation during an audit. Generally, here’s what you can expect during an ICE audit.
Notice of Inspection
Enforcing immigration compliance in Texas begins with a Notice of Inspection (NOI). An NOI is a legal form of subpoena. ICE will request that an employer provide all its I-9 forms and supporting documentation within three days. Employers can waive the three-day notice if they wish, but most typically contact an immigration attorney before proceeding.
Document Submission
If your business receives an NOI, you are legally obligated to provide I-9 forms for all current and sometimes former employees. The NOI will list any additional documentation that you are required to produce. This can include payroll records, a list of current employees, Social Security Administration documents, employment tax documents, business licenses, and a list of any contractors that you employ for work.
Review Process
During an audit, ICE can request original copies of an organization's I-9 forms. Employers should make copies of any forms submitted to ICE. The agency will then review the forms for accuracy and completeness. The authenticity of the documents listed on the forms will be checked to ensure that they relate to individual workers.
Issuance of Findings
After reviewing the forms, ICE will issue its findings. This can include notices of technical or procedural failures that require correction. Suspect documents may also be noted during the issuance of findings. If ICE finds significant employment violations in the records, it may issue a notice of intent to fine the business.
Employer Response
Correcting technical errors on I-9 forms and documentation is among the employer's immigration responsibilities during this process. You may be given a deadline of 10 days to correct errors. More severe violations, extending beyond technical mistakes on forms, can result in fines or penalties. If ICE uncovers evidence of knowingly employing unauthorized workers, it can result in criminal prosecution of the employer.
Follow-Up
If you have been audited once and ICE finds employment violations, the chances of a follow-up audit increase dramatically. The agency will want to ensure ongoing compliance. Proper documentation and record-keeping are essential if an organization hopes to come through additional audits unscathed.
Best Practices for Compliance
There is no guarantee that a Texas employer will be audited by ICE, but it's best to be prepared in advance. Organizations should appoint an employee from Human Resources or their legal department to be the point person in the event of an ICE audit.
Basic protocols should be established for that employee to follow in the event of an audit, including how to respond to the audit and the submission of documents. Although employers can waive the three-day deadline for producing I-9 forms, it's best always to consult an immigration employment attorney first.
Employers should be proactive in this process. Regular audits of I-9 forms should be conducted to identify errors and correct them. Even if you are making every effort to ensure that you only hire lawful workers authorized to work in the US, you can still be penalized by ICE for significant errors found in I-9 forms.
Potential Legal Consequences for Non-Compliance
I-9 paperwork violations can result in fines as high as $2,789 per form. A first offense of hiring an unauthorized alien can result in a maximum fine of $5,579 per violation. A second offense can result in a maximum fine of $13,946. A third or additional offense can result in a fine ranging from $8,369 to $27,894 for each violation.
How to Respond if Audited by ICE
To respond to an ICE audit effectively, organizations should follow the following steps before they ever receive an NOI.
- Conduct regular internal audits of I-9 forms
- Provide compliance training to HR staff
- Establish a protocol for handling ICE audits
- Consult with an attorney to ensure that actions during and after an audit comply with legal standards
Conclusion
As ICE intensifies its focus on Texas employers, especially in sectors prone to audits, preparing in advance is essential. Proactive measures can safeguard your business against potential legal challenges. For expert guidance on navigating ICE audits and staying compliant with immigration laws, reach out to Affiliated HR & Payroll.