QUESTIONS & ANSWERS
1. Employers are required to complete Form I-9, Employment Eligibility Verification for each new hire. How does Immigration and Customs Enforcement (ICE) verify that employers are complying with this requirement?
ICE has the authority to inspect the employers hiring records in order to verify that the employer has been complying with Form I-9 requirements.
2. Does ICE inform the employer before an inspection takes place?
ICE will serve a Notice of Inspection advising the employer that an inspection of their hiring records will take place. The employer is required to provide the company’s I-9’s within 3 business days.
3. What is ICE looking for during an inspection?
During an inspection, ICE is looking for the following:
a. Evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, money laundering, and other such criminal activity
b. Evidence of employer violations: Improperly completing Form I-9, knowingly hiring unauthorized workers, or discriminatory practices
c. Evidence of unauthorized workers
4. Can ICE search the premises or talk to employees during an inspection?
ICE cannot enter or search premises or speak to employees without a warrant.
5. What happens if ICE finds technical or procedural violations?
a. If technical or procedural violations are found, the employer will be given 10 business days to make corrections
b. If the employer fails to properly complete, retain, or make Form I-9 available for inspection as required by law, it may face civil money penalties for each violation. In determining the amount of the penalty, ICE considers:
1. The size of the business of the employer being charged
2. The good faith of the employer
3. The seriousness of the violation
4. Whether or not the individual was an unauthorized alien
5. The history of previous violations of the employer
6. What happens if ICE determines to issue a fine?
If a determination to issue a fine is made, the employer will be served a Notice of Intent to Fine (NIF) and charging documents will be provided specifying the violations committed by the employer.
7. What is the process when a complaint is filed by ICE?
a. Complaint and Answer: The complaint must be detailed and specific. Employer has 30 days from the date of receipt of the complaint to file an Answer or Answer & Affirmative Defenses.
b. Dismissal of Counts: Counts may be dismissed if the substance of the charge does not match the statutory violations cited in the NIF.
c. Default: A default judgment may be entered by the Administrative Law Judge ALJ) if the employer fails to file an Answer
d. Discovery: Broad discovery is permitted consistent with the Federal Rules, which allow discovery regarding any matter not privileged that is relevant to the subject matter involved in the proceeding.
e. Motion for Summary Decision: Standards are the same as in federal court.
f. Hearing: Federal Rules of Evidence are a general guide but hearsay will not be automatically excluded if it is considered relevant, material, and reliable (e.g., affidavits prepared by ICE agents are regularly admitted into evidence).
8. Does the employer have a right to an attorney?
The employer may be represented by an attorney at its own expense.
The attorney may also serve as a witness where the attorney’s testimony is in regard to an important issue and may be the only available testimony.
9. What is the burden of proof?
ICE must prove a violation by the preponderance of the evidence.
10. What defenses may an employer raise?
a. Good faith defense to unauthorized hiring: Good faith compliance with the verification system. Form I-9 was completed and documents were provided to ICE.
b. Good faith defense to paperwork violations: Correcting violations within the 10 days provided by ICE can be considered good faith.
Good faith is found where employer is careless as opposed to demonstrating disdain or gross disregard (backdating documents will be considered evidence of bad faith).
c. Substantial compliance defense to paperwork violations
d. Impossibility as a defense to the failure to present I-9’s: Documents were destroyed by no fault of the employer (e.g., fire, flood)
e. Independent contractor, volunteer, or sporadic domestic servant: Employer may argue that individual was an independent contractor, volunteer, or sporadic domestic servant, therefore an I-9 was not required by law
f. Statute of Limitations: May bar a claim that is commenced 5 years or more after the claim accrued
g. Improper statutory charge: The substance of the charge does not match the statutory violation cited
h. Constitutional challenges: Challenges to the ICE audit (selection was not random and violates the Fourth Amendment; selective enforcement of employer sanctions violates the Fifth Amendment equal protection rights)
11. What penalties can be imposed on the employer?
a. The government has the burden of proof regarding the amount of penalties applicable once liability has been determined.
b. Penalties include the following:
1. Cease & desist order
2. Civil penalties for engaging in a pattern or practice of knowingly hiring unauthorized aliens (per EACH violation):
First Time: $548-$3,726
3. Monetary penalties for substantive & uncorrected technical I-9 Violations (per EACH violation):
4. The per cent of violations compared to the total amount of employees will be considered when determining the penalty amount
3c. Criminal penalties may be imposed where there is a standard of pattern or practice of hiring unauthorized workers. Criminal violations are reserved for serious and repeat offenders who have clearly demonstrated an intention to evade the law. The employer will be subject to a fine and/or up to 6 months of jail time.
12. Can a decision by the Administrative Law Judge be appealed?
An Appeal with the Chief Administrative Hearing Officer (CAHO) must be filed within 10 days of the entry of the Administrative Law Judge order and written brief must be submitted within 21 days of the entry of the ALJ order
13. Can the courts review the decision of CAHO?
A petition for review must be filed with the court of appeals within 45 days of the date of a final order from the administrative agency
If you have questions about your immigration case here in Florida, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Groups. Contact Attorney Evelyn today at firstname.lastname@example.org to discuss any family or marital legal issues you may be experiencing.