Navigating an I-9 ICE inspection

Summer 2006 – Published on the Latin Business Club of America website

By M. Keil Hackley, Partner, Hackley & Robertson, P.A. kh@HackleyRobertson.com

A few weeks ago, Immigration and Customs Enforcement (ICE), the largest investigative branch of the Department of Homeland Security, served a local Miami business with a written notice announcing an in house inspection of the company’s I-9 records,
which verify an individual’s identity and legal work authorization upon the time of hire. The written notice allowed for the customary three days before ICE would come knocking on their door.

ICE was formed following 9/11 to protect the U.S. against potential terrorist attacks by targeting illegal immigrants. Part of the agency’s job is to inspect work sites to crack down on unauthorized aliens. Within recent months, ICE has stepped up I-9 inspections, which has prompted U.S. employers to conduct private I-9 audits, so in case they receive a written notice from ICE, they can rest assured that employment records for each employee are up to date and accurate.

In the above-mentioned example, the business owners retained our law firm to properly supervise and guide human resources through the upcoming ICE audit. A team of lawyers arrived at the company’s physical location first inspecting hiring practices next to the company’s internal compliance policy. The lawyer team then asked to see the company’s I-9 records, in order to verify the information within each of the three sections.

Once all the I-9 forms had been reviewed, our team asked for a printout of the company’s current payroll to make sure that the number of filled out I-9 forms corresponded to the number of employees figuring on the payroll. Further, the team asked for a sample of payroll papers from the past three years to account for terminated employees still requiring I-9 forms on record making sure their names appeared on the physical I-9 forms.

The team further told the client that ICE is authorized to review company I-9 records only. Therefore, the team advised the client to direct ICE inspectors to a room that would hold nothing but the I-9 forms. Also, if ICE wanted to talk to employees, view payroll documents, or otherwise inspect the facilities, the lawyers would ask ICE for a subpoena or a warrant, which would have to specify which person(s) or/and record(s) they wish to take a closer look at.

Employers should be aggressive and defend themselves even after a violation has been found, as failure to assert and prove mitigating factors may result in maximum fines for paperwork violations.