Employer Alert: ICE Inspection Notices and Subpoenas
The federal government imposes strict requirements on employers in verifying their workers’ employment eligibility – and tough penalties for employers that fail to comply.
In the normal routine of businesses, employers have a
lot to worry about – including attracting customers, managing employees, making
payroll, and following regulations. Work gets hectic, and employers may not pay
close attention to their hiring practices.
As a result, workers may get hired
without documenting their eligibility to work in the U.S. Because employers can
be fined – and, in certain situations, criminally prosecuted – for employing
unauthorized workers, it is especially important that employers confirm that
their employment documents are in order.
Employer Responsibility In Accepting Documents
Federal immigration law requires employers to hire only
U.S. citizens or aliens who are authorized to work in the U.S. and to verify the
identity and employment eligibility of all individuals hired in the U.S. after
November 6, 1986. To document this verification, employers must use the
Form I-9 (Employment Eligibility Verification)
for all employees and retain the I-9s for inspection.
In gathering documents from persons for verifying
employment authorization (e.g., birth certificates or unexpired passports) and
identity (e.g., unexpired driver's licenses or voter's registration cards),
employers are expected to accept documents that reasonably appear to be genuine
and appear to relate to the persons presenting them. Employers are not expected
to be document experts.
The Form I-9 for each employee must be retained for
three years after the date of hire, or for one year after the date employment
ends, whichever is later.
ICE Inspection Notices and Subpoenas
More and more, we learn of employers in central Arizona
and elsewhere who are subjected to inspections by U.S. Immigration and Customs
Enforcement (ICE) officials. The inspections are designed to ensure that
employers are verifying the identity and employment eligibility of their
To ensure compliance, an ICE agent or auditor can
initiate an administrative inspection by serving on an employer a Notice of
Inspection (NOI) and subpoena (DHS Form I-138) that can compel the production of
the Forms I-9. The subpoena is an important piece, as employers generally do not
otherwise have to allow access to employee records unless the inspector has a
valid warrant signed by a judge.
By law, employers have at least three business days to
produce the I-9s. ICE may also ask the employer to provide supporting
documentation that commonly includes:
• a copy of the employer's payroll with detailed wage
information for each employee;
• an employee list that shows each current employee's
full name, date of birth, social security number, and hire date; and
• a copy of the employer's articles of incorporation and
annual report (if a corporation) or articles of organization (if an LLC) and
Stiff Penalties for Violations
If the employer fails to produce the required records,
or if the Forms I-9 contain discrepancies and are found to be not in compliance
with the law, the employer has ten business days to make corrections.
An employer may be fined for substantive and uncorrected
technical violations. For example, monetary penalties for substantive
violations, which include failing to produce a Form I-9, range from $110 to
$1,100 per violation. Penalties for knowingly hiring and continuing to employ
workers, without gathering and retaining the required forms and records, range
from $375 to $16,000 per violation, with repeat offenders incurring penalties at
the higher end of the range.
In determining penalty amounts, ICE considers five
factors: the size of the business, good-faith efforts to comply, the seriousness
of the violation(s), whether the violation involved unauthorized workers, and
history of previous violations.
To avoid serious consequences, employers must make sure
that their Forms I-9 are on file and in order, from the date of hire through the
required document-retention period.
If your Forms I-9 or supporting documentation are not in
order, or if you are served with an ICE inspection notice and subpoena, you
should contact your employment attorney or the Fitzgibbons Law Offices for
assistance in complying with the federal government’s strict requirements.