Best Practices in Worksite Enforcement

To facilitate compliance with employment verification and minimize liability, attorneys should advise clients to:

• Establish, at a minimum, an annual training program for those involved in the I-9 process. The training should include updates on immigration law-related changes.

• Conduct yearly preventative I-9 audits by an external auditing firm or immigration lawyer trained in IRCA provisions.

• Ensure that all employees’ I-9 forms are completed in an appropriate and timely manner.

• Establish uniform policies regarding the I-9 process and compliance, including whether to copy supporting documents; storage of I-9s; addressing credible reports of suspected unlawful employment and/or fraudulent identity; and retention and purging.

• Establish a tickler system for re-verification of employees with limited work authorization.

• Provide those involved in the I-9 process with access to an immigration attorney trained in IRCA provisions to provide advice and guidance when a problem and/or question arises.

• Obtain the name of the ICE agent and copies of all the documents taken in the case of an ICE I-9 audit.

• Include contractual provisions that subcontractors are responsible for the proper employment verification and completion of I-9s for all of their employees assigned to the employer’s place of business.

• Have subcontractors certify that they enforce strict immigration policies.

• Require subcontractors to submit to third-party employment verification audits.

• Include an indemnity provision in the subcontractors contract whereby the subcontractor agrees to defend and indemnify the employer for any liability arising out of claims that subcontractors’ employees are not authorized to work.

• Include an inquiry into the immigration status and employment eligibility of the workforce in case of restructuring, merger, or acquisition.

• Prepare for the possibility of worksite enforcement action by ICE and have a contingency plan if a significant percentage of the workforce is arrested.

Conclusion
Regular training and proper and timely completion of the employment verification process are the first line of defense in the current, and expected to continue, hostile immigration enforcement environment. Employers must remain informed about ICE’s operations and evaluate their potential exposure in light of potential criminal liability, significant sanctions, and business disruptions. Taking proactive measures such as those outlined in this article can help companies prepare and minimize liability.