Time to prepare, South Florida: I-9 worksite enforcement is on the rise

Government enforcement activities at worksites surged from 300 percent to 750 percent during fiscal year 2018. Clearly, immigration-related investigations have been a major theme of the Trump administration. Among several high-profile actions which took place in 2018, many of South Florida’s largest industries remain susceptible as targets for ongoing compliance issues. Local companies should not only prepare for a Notice of Inspection (NOI) but also should work toward preventing noncompliance.

In fiscal year 2018, enforcement actions, conducted by U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) agents, reached 6,848 worksite investigations compared to 1,691 in fiscal year 2017. I-9 audits reached 5,981 for FY18 compared to 1,360 in FY17 and HSI made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively, in the prior year. These arrests included employer managers and other employees.

In this “new era” of compliance, immigration issues continue to be perplexing, misunderstood and emotional to most. Politics aside, South Florida employers need to recognize the significance of being compliant and prepared in the event immigration authorities visit tomorrow. Local industries such as hospitality, healthcare, construction, and agriculture, just to name a few, need to understand the potential for severe consequences and make immigration compliance a top priority.

During an ICE employment raid, it’s imperative that employers know and exercise their rights. A person has a right not to answer any questions and should not sign any documents. The right to request an attorney is available if the immigrant is being arrested for criminal or immigration proceedings. ICE should present a search warrant which permits agents to enter a specific location to search for items specifically identified in the warrant.

If the purpose of the visit is to conduct an I-9 audit or investigation, ICE must first supply a subpoena in the form of a Notice of Inspection (NOI). An employer receiving a subpoena generally has at least three business days to provide ICE with Form I-9s and related documentation.

Employers need to know where their I-9 forms are maintained. The three-day window to produce the I-9s can pass quickly if the documents cannot be located, need to be obtained from an electronic storage provider or if the I-9s are in an off-site location. A prepared employer also may choose to waive the three-day period as a show of good faith to ICE.

Employers should also self-audit their I-9 forms periodically. They should review their I-9 intake and completion process and procedures for any potential exposure and develop an I-9 policy if currently lacking one. This can include the onboarding process and I-9 retention and reverification schedules. Attention should be focused on ensuring each active employee has an I-9 and that the form has been completed timely and correctly, as well as properly retaining terminated employee forms.

Which South Florida employer will be next? Now is the time to invest the energy and resources into strategies that best protect your company.