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I-9 E-Verify Immigration Compliance

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  1. Be Prepared for a Notice of Inspection from ICE, They May be at Your Door

    By: Bruce Buchanan, Sebelist Buchanan Law

    As Immigration and Customs Enforcement (ICE) branches out from their concentration of ICE audits of California employers to the heartland of the United States, such as Tennessee, Arkansas, and Texas, employers need to be ready to respond to ICEís delivery of a Notice of Inspection/subpoena.

    One of the best ways to prepare for an I-9 inspection by ICE is to hire an immigration attorney, who is experienced in worksite enforcement and immigration compliance issues. Even if you currently have an immigration attorney for employment-based visas, there is a good chance that he or she does not handle worksite enforcement, such as ICE inspections. Therefore, if you have an immigration attorney, reach out to him or her and inquire as to whether they are experienced in worksite enforcement matters. If so, great but if not, ask him or her to refer to an experienced immigration compliance/worksite enforcement attorney. If you donít have an immigration attorney, ask your corporate counsel for assistance in finding one. You donít want to be doing this after ICE shows up at your facility.

    The next step is for your immigration compliance attorney to conduct or supervise an internal I-9 audit. Through this audit, numerous errors will be found, most of which can be corrected so that if ICE inspects your I-9 forms, the errors will not be considered a substantive error, for which you can be penalized for. And donít kid yourself, your I-9 forms have lots of errors. In all my years of practice, I donít recall any employerís I-9 forms as impeccable although on more than one occasion an employer has stated such before the I-9 audit began.

    Also, donít be fooled by the fact that all your employees are U.S. citizens. You can still have substantive and technical I-9 errors. Another common comment from employers is Iím in great shape as we use E-Verify. Although E-Verify is excellent in establishing who is authorized to work, it cannot locate substantive or technical errors on the I-9 forms. One proven method to reduce substantive or technical errors on the I-9 forms is using electronic I-9 systems as well as using the ďsmartĒ I-9 form, which was introduced by the USCIS in 2016.

    The reason preparedness is so important is because of the short time period ICE gives employers to respond and supply the subpoenaed I-9 forms. The Notice of Inspection/subpoena allows the company just three days to turn over their I-9 forms, along with a laundry list of other documents such as payroll information, tax statements and assorted corporate documents. Usually, your counsel will be able to get an extension of these three days but rarely will ICE extend the date by more than a week. However, even this timeframe is not nearly enough time for a company that was not already prepared for it, especially if the company has a lot of employees or former employees. ICE can and does subpoena I-9 forms of former employees. One helpful hint on former employeesí I-9 forms is they may be purged at certain times but not after the subpoena is delivered.

    Getting an attorney involved as soon as an ICE inspection is launched can help an employer in several ways. As stated above, an attorney may help the company negotiate a few daysí extension in responding to the subpoena. And/or the attorney may be able to get a reduction in the list of requested documents. Most importantly, an attorney can help the employer prepare to respond in a methodical and thoughtful way.

    Being prepared for a Notice of Inspection/subpoena requires a company to have proper procedures in place upon hiring. The best way to have these procedures in place is with an Immigration Compliance Policy. Unless you have retained an immigration compliance/worksite enforcement attorney, it is extremely unlikely you have such a policy. One paragraph in your employee handbook does not equal an Immigration Compliance Policy. Under such a policy, every employee responsible for completing I-9 records on behalf of the company should be trained to do so. To many people, it is hard to tell the difference between a green card and a work authorization document issued to a recipient of DACA or TPS. Yet, one represents permanent work authorization that should never be reverified, and the other requires the employer to reverify the I-9 form upon the documentís expiration.
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