QUESTION: I’m afraid that I will get in trouble. My worksite is being audited. What should I do?
Answer: Here are some useful tips. You should consider doing the following: Develop a transparent process for interacting with employees during the audit, including communicating with employees that the employer is subject to an ICE audit. Provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE. Treat all workers in the same manner during the audit, without regard to national origin or citizenship status. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same timeframes and the same choice of Form I-9 documents to present.
If your workers are represented by a union, inform the union of the ICE audit and determine whether a collective bargaining agreement triggers any obligations. Inform employees from whom you seek specific information that you are seeking this information in response to an ICE audit.
Communicate in writing with employees from whom you seek information, and describe the specific basis for the discrepancy and/or what information you need from them. Follow the instructions on the ICE notice and the instructions for the Form I-9 when seeking to correct Form I-9 defects.
Question: You have given me what I should do. Now, what about what I should not do?
Answer: Don’t selectively verify the employment eligibility of certain employees based on their national origin or citizenship status based on the receipt of an ICE Notice of Inspection.
Don’t terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I-9 documents. Don’t require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain.
Don’t limit the range of documents that employees are allowed to present for purposes of the Form I-9.
Don’t treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the US.
There are definitely ways to properly conduct yourself in an ICE audit.No matter how big or small your company is, you should make sure to get a qualified immigration attorney to help you with the audit.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
