Posted on November 12th, 2018
Employers beware! ICE raids on California businesses are increasing.
Don’t get caught out of compliance.
Learn here how to properly prepare for an I-9 audit.
It’s hard to ignore all the ICE raids now targeting California despite its sanctuary state status.
Back in March, ICE arrested 232 people in four days of raiding the Bay Area.
At the end of September 2018, another 150 people got caught in the ICE net in Southern California.
If you hire employees in California or anywhere in the United States, you must comply with Federal immigration laws, which often comes with inspections or even raids.
One of ICE’s most prominent tactics is an I-9 audit whereby federal enforcement subpoena’s access to your records to review your I-9 forms.
However, in a bizarre twist California is fighting back against the Federal government making all this even more complex and complicated for California employers. The state of California changed its laws regarding immigration compliance in 2017.
The new law, AB-450, means that employers can no longer provide voluntary consent to ICE agents.
So as a California employer the Federal government is telling you have that you have to comply with one thing while the state government is saying the complete opposite!
Typcial of what its like to deal with California laws as an employer right?
What does this all mean and what should you do if you receive notice of an I-9 audit?
Keep reading to find out.
What Is an I-9 Audit?
I-9 is the employment form used to verify the legal right to work in this country via employment authorization and identity. All employers must complete and store an I-9 for every single employee.
You must keep all forms for either three years after the date of hire or one year after they leave the company depending on which one is longer.
The I-9 process began in 1986, but the form received regular updates in the intervening period.
The government published the most recent version from on July 17, 2017, and it is due to expire on 8/31/2019.
Along with the form, employees provide documents from a list of acceptable proof of identity sources that proves their employment eligibility in the United States.
Employees may provide whatever documents they choose, and employers may not tell them what to provide or demand more documents than legally required.
I-9 Audits and ICE
Incorrectly filling out any government paperwork lands you in hot water, and the I-9 is no exception. Even writing the date incorrectly is a violation.
I-9 forms are also a mode of entry for federal immigration enforcement. ICE has the power to audit your I-9 forms and request documents like payroll records and wage reports.
When ICE initiates an I-9 audit, they do so by providing a ‘Notice of Inspection’ to the business.
It’s crucial in the current climate to ensure all administrative employees recognize a notice when they receive one.
Once ICE delivers the notice, you only have 72 hours to prepare for an inspection.
You need to make every one of those hours count!
ICE and California: What is California Law AB-450?
AB-450 is an employment regulation related to immigration work-site enforcement actions. Its goal is to prevent “unfair immigration-related practices” and adds protections for both employers and employees at work.
How the Law Impacts Your I-9 Form and an ICE I-9 Audit
The bill does several things, but it’s relevance to the I-9 Employment Eligibility Verification forms is one of the most important actions.
It requires an employer to notify an employee of an inspection of their I-9 forms or any other records within 72 hours of receiving notice themselves from a federal agency.
When it’s reasonable, the employer must provide the employee with a copy of the inspection notice.
Employers who fail to do this can face a violation fine of $2,000 to $5,000 upon the first offense and $5,000 to $10,000 for further violations.
Communicating an I-9 Audit to Employees
If you received notification of an inspection of your workplace, then you have obligations under California government codes that actually encourage non cooperation with ICE.
First, you are not allowed to allow agents to enter non-public areas without providing a warrant. Employers should verify that the inspectors have a warrant in a public space where employees are not present.
Remember, you cannot provide voluntary consent without a warrant or subpoena. You may also challenge the validity of a subpoena or warrant.
In the case of an I-9 audit, you may provide the paperwork if you received a Notice of Inspection, and neither a warrant nor subpoena is required.
What to Provide When You Notify Employees of an Audit
Code 7285.1, 7285.2, and 7285.3 details how to notify employees when an I-9 or another inspection is scheduled.
You must provide written notice to employees and/or their representation within 72 hours of receiving an official Notice of Inspection from any agency.
Within your written notice, you must provide four key details:
- Name of federal agency involved
- Date of Notice of Inspection
- Nature of audit (to the best of abilities)
- Copy of the official notice
If employees request a copy of what was received from the federal agency, you must provide it to them.
Finally, you must provide written notice of both your obligations and their obligations.
Other Issues to Communicate to Employees
Double-check that you notified employees in a manner that matches California Labor Code requirements.
Once you’ve done so, you’re free to provide advice by telling employees that they are not obligated to speak to the auditors or immigration agents nor must they hand over any documents.
It is often a good idea to remind employees to contact their immigration attorney if they have one.
Otherwise, direct them to Legal Aid or other immigration resources.
Prepare for an Audit with a Checklist
California law doesn’t permit you to re-verify employees after receiving an audit. But it’s important to make sure your I-9 forms are correct.
We recommend following an I-9 audit checklist for an internal audit before the government reviews your files.
Auditing doesn’t need to be difficult. It is as simple as making sure the forms are filled out and you followed all the form instructions.
Click here for a basic I-9 checklist template. Note that providing the template is a resource that does not constitute legal advice.
Follow the Law Before ICE Catches Up
ICE is working hard, and it doesn’t look like the agency intends to slow down anytime soon with the current political climate.
Even if you believe you’re sure that your records are complete or correct, you still need to double check them if you receive a Notice of Inspection from ICE or another agency.
If you received a Notice of Inspection, you only have 72 hours to prepare for an I-9 audit.
To learn more about following California labor law, visit our FAQs.
If an inspection is pending, and you need advice now, click here to book a free 15-minute consultation.
