“The Difference Between ICE Raids and Audits”

7/23/2018
SHRM

​“Workplace raids conducted by Immigration and Customs Enforcement (ICE) have returned this year after an absence of a decade. ICE audits have been increasing at an accelerated rate under the Trump administration.

“So, what's the difference between raids…and audits?

“An ICE raid is like it sounds. A part of ICE…shows up at the employer's premises without warning, hoping to catch employers and employees off guard. Raids often occur after an ongoing investigation shows a number of undocumented workers are employed there, often with the knowledge and/or assistance of the employer.

“…Agents enter the business with a criminal search warrant. The warrant will have a detailed description of what and where agents are going to search and what they may seize. This list may include: payroll; I-9 forms and any supporting documents; bank records; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; and other financial or employee records. The employer should immediately contact its immigration legal counsel.

“Employers are not required to answer agents' questions during a worksite raid. If, during a worksite raid, ICE discovers unauthorized workers at the site, it may arrest and detain them. At the end of a raid, ICE agents should leave an inventory of the property they seized and a list of employees arrested.

“…An ICE audit is friendlier than a raid but can also lead to damaging results. In this situation, ICE serves a Notice of Inspection (NOI)/subpoena on the employer, requesting all I-9 forms with supporting documentation as well as many other documents. Normally, the visit to the employer's premises is unannounced, as with a raid. But there the similarities cease. Usually two agents will serve the NOI/subpoena on the employer and demand production of records within three business days. The agents will ask if the employer wishes to waive the three days. Under no circumstances should an employer waive the three days. Upon receiving an NOI, the employer should contact its immigration legal counsel or hire one if the employer does not have one.

“Other records that will normally be subpoenaed include a copy of payroll, a list of current employees and a list of former employees for the past one to three years; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; business licenses; and a list of companies that were contracted for work.

“The ICE agents have the right to receive and inspect the originals of the employer's I-9 forms. The employer should copy all documents that it turns over to ICE. Once the employer provides the documents, an ICE auditor inspects the I-9 forms to determine whether they comply with the law. The ICE auditor is checking for substantive violations, such as incomplete or missing forms, and technical violations, which an employer will be given 10 days to remedy.

“Worksite raids and ICE audits will be frequent tools of ICE. Every employer should be vigilant in its immigration compliance, conduct an internal I-9 audit, and draft or review an immigration compliance policy.”

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