Coming to a business near you: A visit from U.S. Immigration and Customs Enforcement (ICE).
It’s been a tumultuous first quarter with the new Trump administration in the White House. Policy changes on everything from health care and tax reform to funding of the Environmental Protection Agency (EPA) have made headlines almost daily since Trump was sworn in.
Nowhere have the changes been felt more strongly than with our nation’s foreign-born workers and the businesses that employ them. The status of programs allowing legal entry into the United States to work has been on shaky ground over the past 90 days. Businesses that hire foreign workers have been increasingly concerned over the new regulations, including the technology sector, which hires IT talent from all over the world.
As the Trump administration continues to push their vision of immigration reform, businesses are preparing for a domestic policy shift, which is expected to include an increase in the number of ICE audits around the country.
ICE Enforcement at Your Business
ICE had cut down on business audits over the past several years. However, last August, the penalties for hiring workers without proper documentation went up significantly. According to the Society for Human Resource Management (SHRM), some fines almost doubled, with the new rules affecting:
- Violations of the H-1B, H-2A and H-2B temporary visa programs for foreign workers;
- Unlawful employment of immigrants;
- I-9 form violations;
- Immigration-centric employment discrimination practices.
Minimum penalties for a violation in these areas increased from $375 to $539 per incident and the maximums rose from $3,200 to $4,313, according to SHRM. These changes, coupled with a substantial shift in federal immigration policy, is almost certain to guarantee an increase in ICE audits for small, medium, and enterprise-level businesses this year.
Trump Administration Cracks Down on Immigration
True to his campaign promises, President Trump has focused heavily on immigration enforcement during his first 100 days in office. In January and February, the administration abruptly tried to halt immigration at the borders, a move his administration called "temporary." While federal judges eventually blocked those bans, the chaos that ensued during the early months of 2017, wreaked havoc here in Chicago and all around the nation.
But it appears this administration is just getting started. The Wall Street Journal reports that the push for “extreme vetting” will potentially require foreign visitors to share sensitive password information, financial data, and even cell phone contacts before being allowed to enter the country.
But the hallmark of Trump’s anti-immigration plan was to build a 30-foot high border wall between Mexico and the United States. According to The Guardian, the first of what is expected to be several lawsuits have already been filed to block construction. These lawsuits could pose significant delays to the project.
Thwarting this administration in these areas could force attention back to domestic programs, like ICE, as a way to help fulfill their immigration-tough campaign rhetoric.
Preparing for an ICE Audit
Don’t wait for a surprise ICE visit. Now is the time to conduct your own internal audit of HR policies related to immigration and hiring the foreign-born. Self-audits could save you thousands of dollars in fines later on. It gives you the opportunity to re-train HR teams in the latest rules and regulations.
Step one is to review your understanding of the I-9 Employment Eligibility forms, which are the government-required documents proving each employee has a right to work legally in the United States. You can visit the U.S. Citizenship and Immigration Services website to review how to properly complete and file these forms. There is even a free downloadable handbook and webinars to help train human resource teams on staying compliant.
A self-audit must be undertaken carefully to avoid the appearance of targeting any ethnic group. We typically recommend an experienced legal team conduct these audits to ensure compliance, transparency, and prevent the appearance of any impropriety by HR staff.
How you correct mistakes on I-9 forms is just as important as how you handle an undocumented worker. It is crucial never to create a new I-9 but to carefully follow documentation guidelines when correcting a form. For example, if an employee makes an error in section one of the I-9, they are to make the correction. If it's the employer's error in section two, the employer must make the correction. Establishing a clear audit trail during these circumstances might mean the difference between big fines and compliance.
Under no circumstances should you correct any I-9 documentation after ICE has served you with a Notice of Inspection.
If you are audited, you will receive a written notice of the results of your audit. The notice will highlight any suspect I-9 forms, signal the agency’s intent to fine your business, or simply state that you are compliant. If you receive the intent to fine notification, you have 30 days to negotiate a settlement or request a hearing. In all these situations, legal counsel will be invaluable.
Katz Law Office, Ltd. I-9 Compliance
ICE can audit your business unexpectedly at any time. Typically, agents arrive unannounced with a Notice of Inspection. It is important to note that you are not legally required to respond immediately; you have three days to produce I-9 forms for all current employees. You also must provide I-9 documentation for former employees (specific rules apply). Your business may be required to supply a copy of payroll records, business licenses, or other documentation.
It is very important to note that you may be asked specific questions related to your I-9 policies; your answers to these questions may be held against you later on. This is why it is so important to have experienced legal counsel available in the event of an ICE audit.
Katz Law Office, Ltd., has prepared a new, free eBook to help you stay on top of immigration policy in the United States. We also offer a complimentary 30-minute consultation designed to help your business navigate the troubled waters of America’s changing immigration regulatory climate. Don’t wait—contact us today.