Advising Clients During ICE Investigations and Enforcement Actions

Author: Daniel N. Ramirez, Monty & Ramirez LLP

Ensuring that employees are legally authorized to work in the United States is a fundamental legal responsibility for all employers. Understanding federal immigration laws that impose this requirement will ensure that attorneys can advise clients on how to avoid monetary fines and possible criminal prosecution associated with ICE investigations. 

The Immigration Reform and Control Act (IRCA) requires all employers to verify the identity and eligibility of all employees hired after November 1986 to legally work by using Form I-9 (I-9 or Form). The I-9 requires an employee to confirm their identity and authorization to work in the U.S. by providing a specific set of documents. Although this seems straightforward, the process creates headaches for employers who often overlook the Form’s technical and procedural complexities, which can lead to liability exposure. That is why, at Monty & Ramirez LLP, we advise clients during ICE investigations and enforcement actions. 

What to Know About Government Monitoring and 1-9 Compliance

The government monitors employers’ I-9 compliance through ICE investigations. Employers that fail to comply face significant civil penalties ranging from hundreds to thousands of dollars for each improperly completed, missing, or incorrectly completed Form. Working with an attorney for guidance can help ensure you are compliant during ICE investigations and enforcement actions. 

Additionally, ICE investigations are unique in that intentional non-compliance can lead to criminal prosecution not only against the corporation, but against the “bad actors” at the company who engaged in that conduct, which generally falls to human resources, compliance officers, and owners. Employers found to knowingly hire or continue to employ unauthorized workers can face criminal charges, including fines up to $250,000 per unauthorized employee.

I-9 Deficiencies and ICE Worksite Raids

The Buona Forchetta case, also known as the San Diego restaurant ICE raid case, demonstrates how I-9 investigations can escalate rapidly. What began as an administrative investigation developed into a full worksite raid.

ICE may initiate an administrative investigation by issuing a Notice of Inspection (NOI), which gives employers three business days to produce their I-9s and related records. As part of this investigation, ICE will often ask employers to produce records of their business relationships with independent contractors and staffing agencies to ensure employers are not attempting to avoid I-9 requirements by misclassifying employees as independent contractors or using staffing agencies to circumvent their responsibilities. 

Traditionally, employers can expect one of three outcomes at the conclusion of the administrative inspection process: 

• (1) the issuance of a warning notice
• (2) monetary fines, or 
• (3) instructions to terminate suspect employees (i.e., individuals who are unauthorized to work in the U.S.) within 10 days. 

However, the Buona Forchetta case reminds employers that proactive immigration compliance matters because every investigation can lead to unexpected consequences, such as reputational damage, loss of employees, and complete disruption of business operations.

Additionally, when employers face monetary fines, ICE will issue a Notice of Intent to Fine (NIF) that outlines the I-9 deficiencies and associated fines. The NIF is appealable before an administrative judge as long as the employer files a written request to appeal within 30 calendar days. If no hearing is requested, ICE will issue a Final Order, which cannot be appealed, and the employer must pay the full monetary fine. Before you are at risk for any of these enforcement penalties, connect with a skilled attorney who has experience with ICE investigations and 1-9 compliance.

Electronic I-9 Software Does Not Equal Compliance

Employers can complete the I-9 using the standard paper form available for download from the government’s website, or they can purchase electronic software to help complete it. More employers are opting to use software to complete the I-9 because they assume it will eliminate I-9 errors. Although software can help navigate the I-9 completion process, employers must evaluate the I-9 software they purchase because, ultimately, the software does not insulate an employer from liability. Employers, not the third-party software, are responsible for ensuring that the I-9 is properly completed.

The Walmart ICE case is a great example of how I-9 fines can quickly accumulate. ICE investigated approximately 20 Walmart stores and found that their electronic I-9 software audit trail showed approximately 11,000 violations, resulting in a $24.2 million fine. Electronic I-9 audit trails create a record that lets investigators assess who accessed the Form, what changes were made, and when. This case illustrates that I-9 compliance is not easy, even for Fortune 500 companies, and that I-9 fines add up quickly. The Walmart case also confirms that simply using I-9 software does not eliminate an employer’s responsibilities or insulate it from liability. 

We advise against employers using deficient I-9 software or relying solely on paper forms, since they do not have control systems and may face higher risks of fines and penalties during ICE investigations and enforcement actions. Even minor errors can lead to significant consequences. Ensuring that I-9 solutions align with the latest compliance regulations is essential. Lastly, employers can face large monetary fines for failing to comply with I-9 procedures. For example, Section 1 must be completed by the end of the employee’s first day of work, and Section 2 must be completed within the third business day after that employee’s first day of work.

Contact Monty & Ramirez for Advice on ICE Investigations and Enforcement Actions

Ensuring that employees have an I-9 is mandatory for all U.S. employers. Whether using paper forms or electronic software, staying informed and following legal requirements helps protect businesses from penalties. At Monty & Ramirez LLP, we advise clients during ICE investigations and enforcement actions. If you need help protecting your business and your employees, contact us today.