With an eye on the bottom line, employers must think carefully about when to involve outside counsel on business matters. It can be tricky to know when to call on immigration counsel rather than counting on the HR team to identify and handle immigration-related issues. In particular, companies that do not sponsor employment-based visas may be caught off guard by immigration compliance issues they still face.
There are times when it is blazingly obvious that the immigration lawyers will need to step in—like when U.S. Immigration and Customs Enforcement surprised 7-Eleven with a raid on dozens of its franchised stores across the country on Jan. 10. Dramatic raids like this are a major feature of the current worksite enforcement regime, which seeks to find and penalize employers who turn a blind eye to their employee’s work authorization and send a message to all employers and undocumented immigrants.
Employers will also recognize the urgent need for legal assistance when ICE issues a Notice of Inspection. The subpoena allows the company just a few days to turn over its I-9 records, along with a laundry list of other documents such as payroll information, tax statements and assorted corporate documents. The three- to five-day deadline is not nearly enough time for a company that was not already prepared for it.
Getting a lawyer involved as soon as an ICE inspection is launched can help an employer in several ways. A lawyer may help the company negotiate a few days’ extension or a reduction in the list of requested documents. The ICE officer may concede that the scope of the investigation was narrower than what it first seemed (affecting fewer worksites or a narrower band of time). The officer may be willing to adjust the terms of the response, perhaps allowing the employer to mail in the documents, rather than having the officer return to sift through the paperwork in person. Perhaps most importantly, a lawyer can help the employer prepare to respond in a methodical and thoughtful way, rather than throwing together a hasty, uncoordinated response that could be inadequate or overly inclusive.
Employers do not need to wait for ICE to target them before getting their house in order. It is essential for all U.S. employers to be ready for worksite enforcement in order to avoid fines, diminished reputation and major disruption to the company.
Being prepared for worksite enforcement requires a company to have proper procedures in place upon hiring. Every employee responsible for completing I-9 records on behalf of the company should be competent to do so, and each completed I-9 should be reviewed by a manager. It is often not until turnover within the HR team that someone finally realizes that many I-9 records are missing, incomplete or flawed in other ways.
An excellent free resource that every HR employee should bookmark is the Handbook for Employers M-274, maintained on the website of U.S. Citizenship and Immigration Services (USCIS) at www.uscis.gov/i-9-central/handbook-employers-m-274. USCIS updates this digital book every time a new version of the I-9 form is released. It includes more than 100 pages of straightforward information, with helpful photos of sample documents. Employers who use this book may find a decreased need to contact an attorney to evaluate the work authorization of individual new hires.
Regular internal I-9 audits can bring problems to light so that technical errors can be corrected (which minimizes but does not eliminate the risk of penalty). Often the problems identified are procedural or logistical in nature. For example, if I-9 records of terminated employees are left in their personnel files and shipped to offsite storage, is it even possible for the employer to gather all of its I-9 records within three days? Doing a dry run without the government watching over its shoulder could lead a company to change its practice and start keeping physical I-9 records in a central location.
Internal I-9 audits also can help an employer recognize the need to train the employees responsible for completing I-9 forms on behalf of the company. 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 document’s expiration.
In recent months, the Department of Homeland Security has announced the end of temporary protected status (TPS) for multiple countries, including El Salvador, Haiti, and Nicaragua. Additionally, the Trump administration has rescinded DACA (which protected from deportation certain immigrants who arrived as children and allowed them to work). So, hundreds of thousands of people currently working for American businesses will soon lose their work authorization. Their employers must be vigilant not to continue employing them once work authorization has lapsed.
As immigration has become a more popular and passionate issue in the public sphere, employers must recognize how it touches their businesses, even if they have never hired a foreign worker. Making sure all employees’ I-9 records are complete and up to date (reverified only in cases where reverification is legally required) protects the employer and avoids the discrimination that could occur if the employer chose another method of vetting the legal status of its workforce.
Loren Locke is a senior associate at FordHarrison in Atlanta, where she focuses her practice on the representation of employers and employees in issues related to business immigration. She works directly with both individual foreign nationals and their employers to help them obtain a variety of nonimmigrant and immigrant visas and to achieve lawful permanent residence in the U.S.