As the federal government continues its crackdown on illegal immigration, employers across New York are increasingly finding themselves facing I-9 audits and raids conducted by agents with the U.S. Department of Homeland Security (DHS). These audits and raids can present significant risks for both employers and employees, and employers need to ensure that they handle these high-risk matters appropriately. Learn more from the New York employment lawyers at Bell Law Group:
I-9 Audits Can Expose Employers’ and Employees’ Federal Immigration Law Violations
U.S. Immigration and Customs Enforcement (ICE), which is an agency within DHS, uses I-9 audits to identify undocumented workers. Under federal law, employers must use Form I-9 to verify and document their employees’ eligibility to work in the United States, and they must keep their I-9 forms on hand for review by ICE upon request.
I-9 audits can happen quickly—ICE is only required to provide three days’ notice of an impending audit—and they can have serious consequences for both noncompliant employers and undocumented employees. Given the federal government’s current focus on immigration enforcement, it is especially important for employers to ensure that both: (i) they are in compliance with the federal I-9 requirements; and, (ii) they are prepared to demonstrate their compliance to ICE if necessary.
DHS Raids Can Lead to Arrests, Charges and Other Significant Consequences
DHS raids have been making national headlines in recent months. These raids are also focused on identifying undocumented workers; however, unlike I-9 audits, no advance notice is required. In numerous instances, DHS agents have shown up at employers’ facilities unannounced, and they have taken workers suspected of working in the United States illegally into custody.
Similar to I-9 audits, DHS raids also present legal risks for employers. In addition to facing substantial civil fines, employers accused of hiring undocumented workers can also face criminal prosecution in some cases. Some examples of potential charges (and penalties) in these cases include:
- Hiring Undocumented Workers (8 U.S.C. § 1324a(a)(1)) – Up to a $3,000 fine and six months of federal imprisonment.
- Continuing to Employ Undocumented Workers (8 U.S.C. Section 1324a(a)(2)) – Up to a $3,000 fine and six months of federal imprisonment.
- Harboring or Shielding Undocumented Workers (8 U.S.C. Section 1324(a)(1)(A)) – Up to a $250,000 fine ($500,000 for businesses) and 10 years of federal imprisonment.
Again, these are just examples. Due to the substantial risks involved—both for themselves and their employees—employers in New York must ensure that they are prepared for the possibility of facing a DHS raid as well. For those that currently employ undocumented workers, this will involve working closely with an experienced New York employment lawyer who can help them make informed and strategic decisions about how best to proceed.
What Employers Can (and Should) Do to Prepare
In light of the significant risks involved in facing I-9 audits and DHS raids, employers in New York need to be prepared to respond effectively in the event that they face scrutiny from ICE or DHS. Generally speaking, preparing for the possibility of an I-9 audit or DHS raid involves taking steps including (but not limited to):
1. Assessing the Employer’s Compliance with All Applicable Federal Immigration Laws
Employers should work with their legal counsel to assess their compliance with all applicable federal immigration laws. This includes, but is not limited to, the laws pertaining to Form I-9. For employers that are not in full compliance with the law, coming into compliance should be a top priority.
2. Gathering (or Generating) and Storing Adequate Documentation of Immigration Law Compliance
Employers should also work with their legal counsel to ensure that they have the documentation they will need to withstand scrutiny from ICE or DHS if necessary. Employers should make sure they have all required I-9 forms and that these forms are readily accessible in case they need to be turned over to ICE. If employers do not have all necessary I-9 forms (or if they are missing any other documentation needed for immigration law compliance), they should work with their legal counsel to promptly gather or generate all necessary documentation.
3. Instructing Employees on How to Respond to Communications from ICE or DHS
If ICE issues an I-9 audit notice or DHS agents make contact, this is something that an employer’s executives and legal counsel need to know right away. With this in mind, employers in New York should instruct their employees on how to respond to communications from ICE or DHS.
4. Establishing Documented Protocols for Managing I-9 Audits and DHS Raids
Beyond making sure that the right individuals know about an impending I-9 audit or DHS raid, employers need to have documented protocols for managing I-9 audits and DHS raids as well. Among other things, this means establishing clear lines of communication and a clear chain of command, and everyone who will need to be involved should have a clear understanding of their specific roles and responsibilities.
5. Ensuring that Experienced Legal Counsel is At the Ready to Advise and Intervene if Necessary
In light of both the increased risk of facing scrutiny and the substantial risks involved in facing allegations of noncompliance, employers in New York should ensure that they have legal counsel at the ready to both advise them and intervene in an I-9 audit or DHS raid if necessary. These are high-stakes matters for employers and their employees, so it is imperative that employers are able to rely on experienced legal counsel as necessary.
Schedule a Free Strategy Session with a New York Employment Lawyer at Bell Law Group
If you have questions or concerns about the risks of facing an I-9 audit or DHS raid in New York, we encourage you to contact us promptly for more information. To schedule a free strategy session with an experienced New York employment lawyer at Bell Law Group as soon as possible, call us at 516-280-3008 or tell us how you would like to be contacted online today.
