Surviving An ICE Audit
September 24, 2015
Any Business, Any Time
All your employees are legally authorized to work in the U.S., right? What would it cost you to prove it? That’s a question an increasing number of U.S. businesses have had to answer under the Obama administration. “’The master narrative of immigration reform is being crafted around the notion of unscrupulous employers seeking cheap labor,’ said Craig Regelbrugge, a lawyer and lobbyist with the American Nursery and Landscape Association.” (Gardella, “As Immigration Audits Increase, Some Employers Pay a High Price”) With more and more companies being audited, ask yourself: are you prepared for an ICE Audit?
“’Any company is at risk at any given time,’ said Leon Versfeld, an immigration lawyer in Kansas City, Mo. In one prominent case, American Apparel, the clothing manufacturer, was forced to terminate 1,800 undocumented workers after a 2009 audit. Chipotle Mexican Grill, the restaurant chain, has let go hundreds of workers since its audit began [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][in 2010].” (Gardella)
One of the ironies of the ICE’s audits, which are essentially raids on businesses, is that while an employer may be forced, at very high cost, to fire many of its workers who cannot produce documentation proving they are in the U.S. legally or authorized to work in the U.S., ICE does not round-up and deport the illegal aliens affected by their audits. This practice leaves such illegal aliens free to go work somewhere else–maybe for the audited former employer’s competitors!
At Executive Legal Professionals, the primary focus of our approach to practicing law is preventive. As we often say, we want to prevent your legal risks (like the risk of an ICE audit) from becoming expensive legal problems (like having to comply with an ICE audit, when you’re unprepared to do so). So, what can you do to be prepared? The rest of this article should help you get started with that.
Building A Fence Around Your Business
E-Verify is a federal program which enables employers to electronically confirm whether a job applicant has provided authentic Social Security or green card numbers. Using E-Verify is mandatory in some states. Under the Tennessee Lawful Employment Act, however, all private employers with six or more employees must register and utilize E-Verify or request and maintain one of the listed identity/employment authorization documents from a newly hired employee or non-employee.
Unless you do business only in Louisiana, your immigration law requirements may not be the same as Tennessee’s. You should ask your General Counsel about your state’s or states’ immigration laws and whether or not you are in compliance with them.
While the reliability and general usefulness of E-Verify has been robustly challenged, which is unsurprising, it remains the single best resource an employer can use for demonstrating they have acted reasonably in hiring their employees. If ICE determines an employer acted reasonably, even if they ultimately hire an illegal worker, the employer will not be fined or held criminally liable.
On the other hand, if your record-keeping is careless, if you do not consult an attorney about the legal requirements in your state, and if you do not use E-Verify, you can expect to be heavily fined or held criminally liable for even technical violations of federal immigration law in the event of an ICE audit. Program, policy, and procedure development is something your General Counsel should be working on with you. Implementing and maintaining good policies and procedures can drastically reduce your risk of fines or criminal sanctions in the event of an ICE audit.
This is a tricky issue, because treating workers differently might lead to a discrimination lawsuit. So, an employer can’t just target their efforts on employees common sense suggests an ICE audit would likely determine to be an illegal alien. Even refusing documents an applicant provides because the employer suspects they could be forged or otherwise less than authentic could expose the employer to potential liability for a discrimination suit. Using E-Verify to confirm whether job applicants are working legally in the U.S., maintaining good records and policies, and using General Counsel to ensure you are complying with the laws in the state(s) in which you do business are the best ways to build a fence around your business to keep at bay the legal and financial risks of an ICE audit.
For more information about General Counsel legal services or anything else in this article, please contact Executive Legal Professionals, PLLC online or by phone at (615) 669-6566. Thanks for reading!
Gardella, A. (2011, July 13). As Immigration Audits Increase, Some Employers Pay a High Price. Retrieved September 16, 2015, fromhttp://www.nytimes.com/2011/07/14/business/smallbusiness/how-a-small-business-can-survive-an-immigration-audit.html?_r=0
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