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ICE Audit Activity -- UPDATE

FELS continues to receive reports about agricultural employers receiving Immigration & Customs Enforcement agency audits. Audits are usually initiated through Notices of Inspection (NOI's). An NOI which may be served either in person, or through certified mail and requires the employer to produce certain original Forms I-9 within 3 business days. An NOI is often accompanied by subpoena to produce other employment records (like payroll records) to permit ICE to verify the employment of the employees subject to the Forms I-9 covered by the NOI.

In some cases, employers are informed that substantial numbers of their employees cannot be found to be legally eligible to work in the U.S. and must be terminated within 10 days. However, it is not uncommon for employers who have conscientiously maintained I-9 procedures and records to emerge without being penalized (other than a loss of workers previously believed to be legally eligible to work) from an ICE audit.

FELS has also received information that California agricultural employers are being subpoenaed to provide testimony and documents concerning employees who have given employers Social Security Numbers beginning with the prefix 900, which are invalid. See:

This renewed interest on the part of the federal government in the work eligibility of employees raises an important point: you are free to self-audit your Forms I-9 to ensure you have a valid I-9 for every employee who has worked for you for whom the law and regulations require you to have an I-9. In short you must:

  • Have a Form I-9 for every employee you have hired since November 6, 1986, and keep that form for three years or one year after that employee leaves your employment, whichever is later.
  • Be certain you follow the "Thursday Rule:" if you hire an employee on Monday, be sure you have a valid Form I-9 on file for that employee no later than the end of the third full business day after the day you hired that employee.

Section 1:

  • Be certain that if one of your employee assists a new employee in completing Section 1 or translates to allow the new employee to complete Section 1, that employee completes and signs the "Preparer and/or Translator Certfication" at the bottom of Section 1.
  • Be sure the new employee signs the employee signature block at the end of Section 1.
  • Double-check that the date of new employee signature matches the date on which the preparer/translator signs the certification.
  • Be sure the employee indicates an immigration status (citizen, noncitizen U.S. national, lawful permanent resident, or alien authorized to work) and provides appropriate USCIS numbers as specified.) 

Section 2:

  • Be sure you do not specify documents (i.e. do not ask someone who "looks Mexican" for a Green Card (Permanent Resident Alien card) or ask somone who appears to be Caucasian or who might expect to be "American" to provide a Driver's License and Social Security Card; offer the new employee a copy of the List of Acceptable Documents on page 9 of "Instructions for Employment Eligibility Verfication/USCIS Form I-9" and allow the employee to select documents to demonstrate their identity and employment eligibility.
  • Ensure that the employee who accepts eligibility verification documents from the new employee examines those documents in the presence of the new employee, allowing that employee to make a valid certification that he has examined those documents, that they appear genuine and to pertain to the presenter, and that to the best of that employee's knowledge the employee is elibigle to work in the United States.
  • Do not accept any document that is expired on the date the Form I-9 is prepared.