Immigration enforcement has been knocking on employer’s door! Employers need to recognize the significance of being compliant today and prepared in the event that immigration authorities visit tomorrow. Given the potential for severe consequences, employers should make immigration compliance a top priority. 

At the outset, employers should understand the important distinction between an Immigration and Customs Enforcement (ICE) visit with an arrest warrant and an I-9 audit by ICE. If ICE arrives with an arrest warrant, immigration counsel should be contacted immediately.

An ICE-issued civil arrest warrant generally does not allow ICE to enter the facility to make an arrest. An administrative warrant issued by an ICE official provides the authority for an agent to arrest suspects on immigration violations.

Administrative warrants do not give ICE permission to enter a place where a person has an expectation of privacy, but that does not cover places of employment.

Know your rights
During an ICE employment raid, it’s imperative that employers know and exercise their rights. A person has a right not to answer any questions and should not sign any documents. The right to request an attorney is available if the immigrant is being arrested for criminal or immigration proceedings.

ICE should present a search warrant which permits agents to enter a specific location to search for items specifically identified in the warrant.

Because employers never know when they’ll be inspected, their best protection is preparation before ICE shows up. The action items below are best practices which employers can follow to help be prepared.

ICE generally comes unannounced to a worksite to start an investigation, which can precede the issuance of a subpoena. Such a visit can disrupt productive work and send shockwaves throughout an office. Employers can minimize this disruption by having a plan in place.

Employers should appoint specific staff, with backups, to immediately interact with ICE agents when they arrive. The reception or front desk staff need to have these names, so they know who to contact. Each of these individuals should be trained to cooperate without putting the company or other employees at risk.

These individuals should be responsible for taking ICE officers to a location where they will be comfortable and won’t interfere with staff or customers. Further, these employees must know an ICE agent doesn’t have permission to freely engage employees, walk the premises, or turn over any documents unless they have a proper warrant.

It should be made unequivocally clear that company contacts are not to answer any questions or provide any other information to ICE. Finally, the contact person should immediately contact immigration counsel, as well as corporate human resources and legal departments as necessary.

If the purpose of the visit is to conduct an I-9 audit or investigation, remember that ICE must first supply a subpoena in the form of a Notice of Inspection. An employer receiving a subpoena generally has at least three business days to provide ICE with Form I-9's and related documentation. Again, because employers can never know whether they’ll be inspected, the best protection is preparation.

Keeping records in order
Employers need to know where their I-9 forms are maintained. The three-day window to produce the I-9's can pass quickly if the documents cannot be located, need to be obtained from an electronic storage provider, or if the I-9's are in an off-site location. A prepared employer also may choose to waive the three-day period as a show of good faith to ICE.

Employers should also self-audit their I-9 forms periodically. They should review their I-9 intake and completion process and procedures for any potential exposure and develop an I-9 policy if currently lacking one. Attention should be focused on ensuring each active employee has an I-9 and that the form has been completed timely and correctly.

Special attention should be given to proper retention of terminated employee forms. Any concerns or issues should be immediately raised with immigration counsel. I-9 audits can be done quickly and at reasonable cost compared to the fines and liabilities that violations may cause.

Employers should designate a person proficient in I-9 completion to undertake the self-audit, be it by an internal employee or by an outside HR consultant or attorney.

Form I-9 Retention Requirements

Employers must have a completed Form I-9, Employment Eligibility Verification, on file for each person on their payroll (or otherwise receiving remuneration) who is required to complete the form. Employers must also keep completed Forms I-9 for a certain amount of time after their employees stop working for them. Never mail Forms I-9 to USCIS or U.S. Immigration and Customs Enforcement.

Once an employee no longer works for the employer, the employer must determine how much longer to keep the employee’s Form I-9.

Retaining Form I-9
Employers must keep an employee's I-9 for three years from their start date, or one year after their last day of employment, whichever comes later. For example, if an employee works for you for three years, you will have their I-9 on file for four years (length of employment + one year, which is longer than three years from their start date). If an employee works for you for one week, you will keep their I-9 for three years (which is longer than one-year post-termination).

The employer is required to retain the page of the form on which the employer and the employee entered data. If copies of documents presented by your employees were made, they should be kept with the corresponding Form I-9.

You may also retain the instructions and Lists of Acceptable Documents pages. Forms I-9 may be stored on paper, microfilm, microfiche or electronically.

Storing Form I-9
Completing Form I-9, Employment Eligibility Verification, requires collecting personal information about employees. Employers should keep this in mind when determining how to retain and store completed Form I-9 and any corresponding documentation so that personal information does not get into the wrong hands. You should store completed Form I-9 and any corresponding documentation such as copies of documents in a manner that fits your business needs and the requirement to make Form I-9 available for inspection. Do not mail Forms I-9 to USCIS or U.S. Immigration and Customs Enforcement.
How to store Form I-9:

• On-site or at an off-site storage facility
• In a single format or a combination of formats, such as:
  • paper
  • microfilm or microfiche
  • electronic

Officers from the Department of Homeland Security, employees from the Immigrant and Employee Rights Section (IER) at the Department of Justice, and employees from the Department of Labor may ask to inspect these forms.

No matter how you choose to store your Form I-9, you must be able to present them to government officials for inspection within 3 business days of the date when the forms were requested.

Form I-9 contains personal information about employees. When storing these forms (regardless of the format you choose), USCIS recommends that employers provide adequate safeguards to protect employee information.

Storing the Original Paper Form I-9
Employers who choose to keep paper copies of the documents their employees present may store them with the employee’s Form I-9 or with the employees’ records. However, USCIS recommends that employers keep Form I-9 separate from personnel records to facilitate an inspection request.

Storing Form I-9 on Microfilm or Microfiche
Employers may keep copies of original, signed Form I-9 on microfilm or microfiche. Select film stock that will preserve the image and allow its access and use for the entire retention period.
Microfilm or microfiche must:

• Exhibit a high degree of legibility and readability when displayed on a reader (viewer) or reproduced on paper; and
• Include a detailed index of all data so that any particular record can be accessed immediately. If an officer notifies an employer of an inspection, the employer must provide the microfilm or microfiche and a reader-printer that:
  • Provides safety features;
  • Is in clean condition, properly maintained and in good working order; and
  • Is able to display and print a complete page of information.

Once employers have preserved a Form I-9 on microfilm or microfiche, they may destroy the paper originals.

Storing Form I-9 Electronically
Employers may use a paper system, an electronic system or a combination of paper and electronic systems to store Form I-9. An electronic storage system must:

• Include controls to ensure the integrity, accuracy and reliability of the electronic generation storage system.
• Include controls to detect and prevent the unauthorized or accidental creation of, addition to, alteration of, deletion of or deterioration of an electronically completed stored Form I-9, including the electronic signature, if used.
• Include controls to ensure an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by an appropriate government agency inspecting the forms.
• Include an inspection and quality assurance program that regularly evaluates the electronic generation or storage system and includes periodic checks of electronically stored Form I-9, including the electronic signature, if used.
• Include a detailed index of all data so that any particular record can be accessed immediately.
• Produce a high degree of legibility and readability when displayed on a video display terminal or reproduced on paper.

For each electronic storage system used, you must maintain and make available upon request complete descriptions of:

           The electronic generation and storage system, including all procedures relating to its use.
           The indexing system that allows the identification and retrieval of relevant documents and records maintained in an electronic storage system. You are not required to maintain separate indexing databases for each system if comparable results can be achieved without separate indexing databases.

NEW FORM I-9 recently released! Get your updated form here.