Simply operating a company in America today comes with the risk of being targeted for an immigration raid. Often, employers hire unauthorized people without any knowledge of an employee’s actual legal status. However, there are measures business owners can take to ensure employees are authorized to work in the United States.
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Creating a compliant workplace
There is no such thing as a corporate scheme where businesses intentionally seek to hire illegal immigrants. People apply for a job and are hired if they meet qualifications for the position.
An I-9 form is part of an identification documentation packet used when an individual starts with an employer. Often, the new hires will provide their social security number and driver’s license. Military IDs or passports may also be used.
If the new hire is not an American citizen, they may use other documents like a nonimmigrant work visa. Students on their Optional Practical Training (OPT) are issued an EAD card, while foreign nationals transitioning to be green card holders are provided with a revised I-9.
One of the processes we go through with our client companies is the I-9 compliance audit. Many times, the I-9s are done incorrectly. If a business’s I-9 forms are incomplete, or just technically wrong, they can get a fine. There are substantial wrongs, and then there are technical errors on the I-9 forms. An example of I-9 noncompliance is when the maiden name is actually the last name.
The government has stepped up immigration enforcement, but companies cannot ask a foreign national anything more than they’d ask an American citizen. A business can be put at risk of violating an employee’s civil rights if it asks certain questions of someone based on the appearance that they come from another country. This is a national origin violation.
Companies have two choices: either photocopy the documents and keep them with the forms or do not. But a company cannot have photocopied packets for some employees and not others. Photocopying packets has helped companies that were raided and found to have hired people who were not legal. The business had the information packets and all the copies of the green cards that looked like regular green cards.
If businesses do discover issues with an employee’s green card, they cannot immediately fire them. The business needs to have a conversation with the employee along the lines of, “Look, we’ve noticed an issue with your document, why don’t you go to the Social Security Office and have it fixed.” It is not legal for businesses to fire the person without first giving them an opportunity to correct the error.
When the Social Security Administration discovers that an individual’s name does not correspond to the social security number, they issue a ‘no match’ letter to the company. Let’s say a new hire fills out an I-9 and has a social security number, but later the business receives a ‘no match’ letter. The key here, again, is not to say, “You’re fired.” Instead, the proper response is to tell the employee that you’ve been informed of the discrepancies and that it’s an employee’s responsibility to work it out.
If a person’s name does not match the social security number on file, it does not necessarily mean they are working illegally. People get their identity stolen quite often and should be able to solve the issue.
In reality, businesses’ hands are tied in a lot of respects. If the company receives something that looks like a real document, they have to accept it as a real document.
Actual vs. constructive knowledge of work authorization
Another thing to consider is the ‘actual knowledge’ and ‘constructive knowledge’ of an employee’s legal status. When a company gets a no-match letter, and the worker keeps coming in without resolving the problem, the business has constructive knowledge at that point.
Actual knowledge can be acquired if an employee’s documents indicate they are a citizen, but then they ask the company to sponsor their visa. At this point, the business would know the employee is not legal and have actual knowledge. Hands are not tied in this scenario; the law is clear and the employee can safely be let go.
What to do in case of an ICE raid:
A site visit is not a raid. ICE may conduct a site visit to see if a worker is really working at a specified location. A raid is when ICE comes in, and it’s a ‘gotcha.’
In the case of a raid, it is imperative to make sure it is being done legitimately. It is crucial to advise managers or employees on what to do in a raid scenario.
- Examine the warrant. As immigration attorneys, we can be there for this or you can email it, take a picture of it and text it to us.
- Never allow access without a warrant. The warrant must be signed by the proper court. If someone comes in and you’re in Texas but the warrant is from New Mexico, that’s not appropriate.
- Check if the warrant is being served within the permitted timeframes. The warrants are specific on that.
- Note the scope of the warrant, the area to be searched, and the items to be seized. If the agents want access to locked facilities that are listed in the warrant, unlock them. Otherwise, agents will forcibly gain entry.
- Immediately contact your attorney and monitor the search process. Assign the company representative to follow each agent around the facility silently, take notes, and record that agent’s actions without interfering.
- Make sure to obtain the name of the supervising ICE agent and the U.S. attorney assigned to the case. You want all of that information.
- Take no actions that can be constructed as inducing perjury, such as telling people to provide false information or documents. Don’t do that.
Let ICE do their jobs but make sure that they’re doing it correctly and record it. You might try to record it on your smartphone or take notes.
Any items seized during the raid will be thoroughly reviewed by ICE and the U.S. attorneys to determine the extent of evidence that exists against the company.
The employer may not continue to employ any worker found to have been illegally employed. ICE will continue to investigate a company for months or years after a raid to see if banned employees are returning using different identities. They will check to see if banned employees are placed in a different work site or are assigned to a graveyard shift in order to avoid detection.
After a raid, undercover ICE agents may pass as prospective employees to see if they are hired after admitting they lacked work authorization. ICE will also cooperate and collaborate with other various government agencies such as the IRS and Social Security Administration, so watch for more no-match letters. IRS may also want to look at the business’s tax records.
Raids are typically the starting point with ICE, but just because a company is raided doesn’t mean they will be prosecuted. We have had many instances of helping companies through the process.
Working with ICE
Companies may get a letter from USCIS indicating that they are going to do an I-9 audit. ICE will come in and do the I-9 audit. The business has three days to turn over its records. In the past, we’ve gone in and started an audit for them and asked for extra time to complete the process. Sometimes USCIS will grant additional time and sometimes they won’t. In any case, communicating with ICE from a business point of view is a very good idea.
ICE can work with you. With one of our clients, we were able to conduct an internal I-9 audit and found one or two I-9 errors then turned those over to ICE. We were actually given time to inform the individuals and time to hire a replacement. It was really surprising for an agency that gets a bad name.
After we did the I-9 audit and corrected all the technical errors, the company was not prosecuted for having hired those people. In the end, the company was not charged one dollar for technical errors.
This is the type of relationship we strive for when working with ICE agents. The ICE agent knew that our client had not intentionally done anything wrong.
Corporate Immigration Compliance programs
Doing things by the book is the best method to maintain I-9 compliance. We’ve helped companies develop corporate immigration compliance programs. Think of it as a business plan for what to do if the wheels come off the car. We build custom programs for each of our clients.
Another thing is preparing clients for site visits and raids. We can introduce employers to deportation attorneys so they can be prepared. Employers learn to care for their employees, even if they do not know an employee is working illegally. If an employee is in trouble, the employer can contact someone available to help. We are always there for the company and ready to work through the process together.