4/3/2018. Someone s Knocking at the Door: Are you ready for increased immigration compliance? I-9 Audit. Lori Chesser

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1 DAVIS, BROWN, KOEHN, SHORS & ROBERTS, 1P.C. Someone s Knocking at the Door: Are you ready for increased immigration compliance? Lori Chesser LoriChesser@davisbrownlaw.com 2 I-9 Audit Immigration & Customs Enforcement (ICE) Now being hand-delivered Typically, two agents Not uniformed but clearly law enforcement Notice of Inspection and Administrative Subpoena for documents Requires the signature of the receiving party (your company) 3 1

2 ICE Seeking an Employee or Employee Information Like the I-9 Audit scenario Could be one agent Usually no subpoena (ICE has a right to take I-9s without a subpoena) Ask for ID; take business card ICE usually asks you not to tip the employee 4 ICE Access For an I-9 audit or when ICE is seeking an employee, agents are limited to the public spaces of your business unless they have a judicial subpoena Public space is where the public would typically have access without your permission Not required that non-public space be posted as such, but you can do so Goal is to end the visit as quickly as possible NOTE: Special rules for California worksites 5 Document Request For an I-9 Audit, you can waive the notice period and provide the I-9s immediately - but please don t! Take the time to have an attorney review the I-9s and the subpoena. If ICE is seeking a specific I-9, they have a right to that document without a subpoena. No subpoena? Three-day notice required. Always keep copies of any document provided to ICE and note the number of documents released. 6 2

3 Raid -Type Visit Raids are a coordinated effort with ICE and often other law enforcement Judicial subpoena Triggers CARR 7 CARR C A R R Call your attorney Allow access (to space or employees) Record action (notes, video, or audio) Read the subpoena 8 CARR+ Do you have to answer questions from ICE? Do your employees have to answer questions from ICE? Can ICE keep people from leaving? Can I do anything to help my employees? Not without an Not without an attorney. Yes, but only by You should not attorney ( I m sorry, However, they are free arresting them ( Are obstruct the law my attorney said to to answer or not answer we under arrest? Are enforcement operation only answer questions if she is here. ) at their own choosing. You should not instruct them to refuse to answer. we free to leave? ) You should not warn employees to run or hide You should advocate for employees (informing agents of employees health or family issues, for example) 9 3

4 Raid-Lite ICE is looking for an employee who is not there and questions others in the location Trigger CARR If no judicial subpoena, no access to non-public spaces No requirement to answer questions without an attorney No requirement to produce identification unless driving a car or in some other situation where ID is required. May still end up in custody, however. 10 The Aftermath Debrief with managers, employees (and possibly their families) to assess what has happened Who was taken? What was taken? What was said to whom? Work with your attorney to determine next steps 11 FDNS U.S. Citizenship & Immigration Service (USCIS) Fraud Detection and National Security Audits compliance with temporary visa rules (mostly H-1B & L-1) Site Visits No subpoena typically - voluntary compliance Call your attorney No requirement to answer questions without an attorney present Your employee can decide whether to answer questions as well 12 4

5 Other Law Enforcement/Agencies I-9s are required to be released to: Dept. of Labor Federal Contract Compliance Program Wage & Hour Division ICE USCIS Dept. of Justice Immigrant & Employee Rights Section State agencies, such as Dept. of Transportation or local law enforcement are not entitled to an I-9 without a judicial subpoena. Other immigration compliance documents (such as for H-1Bs or PERMs) can be inspected by the U.S. Dept. of Labor. 13 Other Law Enforcement/Agencies E-Verify desk audits Now asking for I-9s copies Watch for scams MOU signed for E-Verify waives 4th Amendment rights You can (and should) always call your attorney if a government agent requests document production or inspection or asks for information about your employees. Consider privacy laws when deciding whether to release an I-9 or other employee information to a government agency or law enforcement: Release in response to a subpoena - OK Release to the agency that is legally authorized to inspect - OK Otherwise, releasing personally-identifiable information, such as a Social Security number, could give rise to liability Deliver information securely 14 Preparing for a Law Enforcement Encounter Training better outcome Policies ability to train 15 5

6 Policies to Consider Who should do what? Who calls the attorney? Who allows access? Who records the action? Who reads the subpoena? Who speaks for the company? What should employees who do not speak for the company say? Who else should be notified? Owner/manager? Other locations of the company? Communications/PR staff or professional? What to tell employees? Maintaining the attorney/client privilege 16 Training Review policies with affected employees/managers Provide phone numbers in a location easily accessed Inform employees of their rights and obligations regarding law enforcement 17 An Ounce of Prevention Internal I-9 audits Remember the attorney/client privilege! Regularly purge I-9s outside the retention period for terminated employees (one year after termination or three years after hire, whichever is the longest) Periodic I-9 compliance training 18 6

7 QUESTIONS? DAVIS, BROWN, KOEHN, SHORS & ROBERTS, P.C. 19 7