Last week we discussed the first steps of getting yourself ready for immigration activity. We really didn’t get into what happens with the actual visit or notice of inspection. That preparation is the self Audit. With increased immigration enforcement threat out there, the expectation at this point is that a business is most likely to get an I-9 investigation. What does that mean? First, we mentioned last week that you should conduct your own I-9 Audit.
You must keep the I-9’s for all employees for up to 3 years from the date of hire OR one year after they are terminated…whichever is later. The first thing to do is to go through the I-9’s and purge/or at least separate the records that are not required to be in your files. Only keep the forms you have to keep. That will save you time and confusion if you get an ICE Audit.
ICE will first send you a notice of the investigation and give you a three working day time to get your records together. During this time, contact your attorney or an attorney that specializes in immigration/employment law. Since you’ve already done your own audit, pulling the I-9’s won’t take long but they may also ask for payroll records and other employment records for their cross reference. This is where having the attorney on notice will help. Together you should be able to sort out what they need and are entitled to versus what you can push back on.
They may review the I-9s on your premises or require you to send them copies. Whatever you send them, keep records and copies of your own. Your attorney will help you figure that out as well.
What will happen next?
If ICE decides workers are not authorized to work, they will give you notice of which employees and allow the 10 days to provide work authorization. If they can’t provide authorization, then you must terminate them. You are allowed to ask for more time but recent stories have been that it has not been granted.
The take always are….
1. Have a plan.
2. Have an attorney
3. Self Audit AHEAD of an I-9 Audit
Next… a bit on what a raid could look like.