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When the Investigator Comes Knocking: 5 Guidelines for Protecting Your Legal Rights During an ICE Audit

Published on 4/10/2017 12:00:00 AM
Are you prepared for an impromptu ICE audit if investigators appeared at your office? Here's some guidance on your rights and responsibilities if you're ever in such a situation.

Given the federal government’s crackdown on illegal immigration, I-9 compliance audits are expected to increase significantly in the coming months. To support that effort, the president has committed to adding 10,000 investigators under
the Bureau of Immigration and Customs Enforcement (ICE) — the agency that conducts workplace investigations and audits to ensure I-9 compliance.

You may believe that the odds of being investigated for I-9 violations are low, despite the increased enforcement, especially if you are a smaller business
that follows the rules. However, just one anonymous complaint by a disgruntled employee — or a customer — is all it takes to subject your company to an intrusive investigation. And even if you’re never targeted for an official investigation, you may be selected by ICE for a random audit of your I-9 records. Because most ICE audits and investigations start with a “surprise” visit by an investigator, you need to know in advance what you are obligated to do, and what steps you can take to protect your rights. In many cases, you can avoid penalties and minimize the disruption to your business by taking a few, perfectly legal steps.

Here are five guidelines to follow in case you are targeted for an ICE audit
or investigation:

Ask questions, politely.

Should an ICE investigator show up at your door, stay calm, listen carefully and focus on gathering information.

You have the right to ask the investigator to explain the purpose of the visit, and request as much detail as possible about the scope of the investigation. You can ask how your company was selected, what issues are being reviewed and what the inquiry will involve. You should also record the investigator’s full name, title, address and telephone number — as well as his or her supervisor’s name and contact information.

At this point, just listen carefully to what the investigator says. Do not offer any information about your company or respond to the alleged violations. Later, you’ll need to respond to the investigator’s requests. Your response will depend largely on what the investigator is seeking.

Request time to prepare.

An ICE investigator has the right to inspect your I-9 forms without a subpoena or warrant. However, you are entitled to at least three days’
notice to prepare for this request.

If an investigator arrives unannounced and asks for immediate access
to your forms, you may insist on the three-day notice period. This is true even if the investigator has a subpoena. However, if the investigator presents a valid search warrant covering the I-9 forms, you generally must comply with the request immediately. (For this reason, you should always keep your I-9 forms in one place, file them separately from all other employee records, and purge I-9 forms as soon as the law allows.)

The investigator may try to persuade you to waive the three-day
notice period by downplaying the importance of the investigation with comments such as, “This is a simple document review,” or “I’ll make this quick if we can go ahead and do it today.” Don’t let comments like these pressure you.

Insist on an on-site review.

Sometimes an investigator will ask to make copies of I-9 forms, or even take originals off premises for copying and review. Investigators often prefer this approach because it allows them to review the documents
in their own offices at their leisure. This usually is not in your best interest, because it gives the inspector more time to scrutinize the
forms for I-9 violations.

If an investigator requests copies or asks to remove original I-9 records from your premises, you can object. The fact is, the law merely requires employers to make I-9 forms available in their original form at the location where the inspection is requested.

If you object, the investigator will likely proceed with an on-site review. Should the investigator insist on taking the originals or copies, consider seeking legal advice. Tell the investigator you would like to speak to your attorney before releasing the forms. No matter what, never release
any original documentation without making complete copies for
your own files.

Provide only the documents and access required.

In most cases, an ICE audit should involve reviewing I-9 forms only.
In fact, by law, you are not required to keep copies of the documents employees provided to prove their work eligibility. Doing so may not
work in your best interest, so consider this decision carefully.

Also, never turn over entire personnel files to investigators if they are only requesting to review I-9 forms. Provide investigators only what they are requesting — nothing less, nothing more.

If an ICE investigator asks to see records other than I-9 forms, you have the option to insist on a subpoena. Consider exercising this right if an investigator requests immediate access to documents you have not had the time to review, or if a request seems overly broad or not directly related to the issues being investigated.

ICE can usually get a subpoena within a few days. But this will give you time to find and prepare the requested documents and even have them reviewed by an attorney, if you have concerns.

As a general rule, an ICE investigator may not search your premises without a search warrant. However, public areas such as the parking lot or lobby can be searched with no warrant. If an investigator requests access to private areas, you can insist upon a search warrant.

If the investigator does have a warrant, ask to see it and make a copy. Read the warrant carefully, and if it references other documents, ask for copies of those documents. Generally, you should comply with search warrants but provide access only to areas or items specifically identified.

Be friendly, but stand firm.

Finally, it’s important to establish and maintain a positive working relationship with the investigator. Use a polite, respectful tone when communicating, and always express your willingness to cooperate.
At the same time, you should not be afraid to assert your rights.

For more information on complying with I-9 requirements and avoiding penalties, download our free guide, 9 Essential Tips to Complete Form I-9 Correctly.

Ashley Kaplan, Esq.
Presented by: Ashley Kaplan, Esq.,
Senior Employment Law Attorney
A record number of state and local employment laws were passed in 2018, and many more are pending. With each new law that passes, employers must struggle to understand and comply with ever-increasing obligations.