In this week's Consulta Migratoria® column, I explain what an employer or business owner should do when they receive a notice from ICE that they are going to be audited.
This is the column:
In recent years, U.S. Immigration and Customs Enforcement (ICE) has increased the number of investigations and prosecutions of companies that hire undocumented immigrants. ICE's goal is to find those who are violating the law.
To that end they are conducting audits of companies throughout the country. That is why it is very important that if you or someone you know has a business or company, you comply with the law when hiring people. Otherwise, you can face fines and even jail time.
To give you an idea, in fiscal year 2013, ICE:
- Initiated 3,127 Notices of Inspection and 637 Final Orders, which resulted in a total of $15.8 million in administrative fines.
- Arrested 452 individuals following workplace investigations. Of those arrested, 179 were owners, managers, supervisors or human resources employees who faced charges of harboring or knowingly hiring undocumented immigrants. The remaining workers who were arrested faced criminal charges of aggravated identity theft and Social Security fraud.
- Debarred 277 companies and individuals for committing administrative and criminal violations. These companies and individuals are debarred from receiving federal contracts, certain subcontracts, and certain types of federal financial and non-financial assistance and benefits.
Every employer must ensure that I-9 forms, which verify an employee's identity and work authorization, are in order. Immigration law states that it is the employer's responsibility to examine and accept original documents from the employee, but it also prohibits discriminatory practices during the hiring and employment eligibility verification process.Although ICE claims that the selection of companies for audits is done randomly, the reality is that they look within industries that traditionally hire large numbers of undocumented workers, such as the agricultural industry, construction and hospitality (hotel and restaurant).
How to start an audit
Audits begin when ICE sends a Notice of Inspection. Upon receipt, the employer has three days to submit all employee documentation, including I-9 forms, payroll, and taxes, to determine if they are in compliance with federal employment laws.
Employers who violate the law may be subject to fines, jail time and loss of government contracts, and be required to pay back wages or rehire people who have been discriminated against.
To avoid problems, it is advisable for each company to do its own audits to ensure that it has all the documentation in order if ICE sends a Notice of Inspection. One of the most common and easily corrected problems is having incomplete I-9 forms. An internal audit could save you from problems.
Do not wait for ICE to send you a notice. If you suspect something is wrong with the documentation, consult with an immigration attorney as soon as possible.
If you are an employer and receive a Notice of Inspection, do not be alarmed. Notify management and immediately contact an immigration attorney for proper advice and audit preparation.
For more information and immigration tips, read my blog inmigracionhoy.com.
Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.
Nelson A. Castillo, Esq. is an immigration attorney and author of The Green Card: How to Obtain Permanent Residency in the United States. He is a former President of the Hispanic National Bar Association and current President of the Westlake South Neighborhood Council of Los Angeles. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).
