When The Investigator Comes Knocking: Know Your Rights And Responsibilities In An Immigration Audit

By Jaime Lizotte, HR Solutions Manager at ComplyRight, Inc.

Under the new administration, immigration investigations are expected to increase significantly. President Trump has already announced plans to hire 10,000 additional immigration investigators. But what does that mean to you?

You may think the odds of being investigated for immigration violations are low, especially if you are a smaller business that follows all the rules. However, just one anonymous complaint by a disgruntled employee – or even a customer – is all it takes to subject your company to an intrusive investigation. Even if you’re never targeted for an official investigation, you may be selected for a random audit of your I-9 records.

Because most immigration audits and investigations start with an unannounced “surprise” visit by an investigator, you need to know what the investigator can and cannot do, and what you should and shouldn’t disclose. In many cases, you can avoid penalties just by exercising your rights and understanding your obligations.

Who conducts investigations and audits?

The Bureau of Immigration and Customs Enforcement (ICE) audits and investigates businesses for compliance with employment verification and eligibility requirements. The agency’s primary objective is to reduce illegal immigration practices in employment.

Any employer of any size can become the target of an ICE audit or investigation. Should an ICE investigator show up at your door, you should first listen and gather information.

It is your right to ask the investigator to explain the purpose of the visit, and request as much detail as possible about the scope of the intended investigation. You can ask how your company was selected, what issues are being reviewed and what the inquiry will involve. You should also record the investigator’s full name, title, address and telephone number – as well as his or her supervisor’s name and contact information.

At this point, only listen to what the investigator says. Do not offer any information about your company or respond to the alleged violations.

Later, you’ll need to respond to the investigator’s requests. Your response will depend largely on what the investigator is seeking.

Scenario #1: The Investigator Wants to Review I-9 Forms on Your Premises

An ICE investigator does have the right to inspect your I-9 forms without a subpoena or warrant. However, you are entitled to at least three days’ notice to prepare for this request.

If an investigator arrives unannounced and asks for immediate access to your forms, you may insist on the three-day notice period. This is true even if the investigator has a subpoena. However, if the investigator presents a valid search warrant covering the I-9 forms, you generally must comply with the request immediately.

The investigator may try to persuade you to waive the three-day notice period by downplaying the importance of the investigation. “This is a simple document review.” “I’ll make this quick if we can go ahead and do it today.” Don’t let comments like these pressure you.

Scenario #2: The Investigator Wants to Take Copies or Original I-9 Forms

Sometimes an investigator will ask to make copies of I-9 forms, or even take originals off premises for copying and review. Investigators often prefer this approach because it allows them to review the documents in their own offices at their leisure. This usually is not in your best interest, because it gives the inspector more time to scrutinize the forms.

If an investigator requests copies or asks to remove original I-9 records from your premises, you can object. The fact is, the law merely requires employers to make I-9 forms available in their original form at the location where the inspection is requested.

If you object, the investigator usually will proceed with an on-site review. Should the investigator insist on taking the originals or copies, consider seeking legal advice. Tell the investigator you would like to speak to your attorney before releasing the forms. No matter what, never release any original documentation without making complete copies for your own files.

Scenario #3: The Investigator Wants to Review Other Documents

If an ICE investigator asks to see records other than I-9 forms, you have the option to insist on a subpoena. You should consider exercising this right if an investigator requests immediate access to documents you have not had the time to review, or if a request seems overly broad or not directly related to the issues being investigated.

ICE can usually get a subpoena within a few days. But this will give you time to find and prepare the requested documents and even have them reviewed by an attorney, if you have concerns.

Scenario #4: The Investigator Wants to Search the Premises

As a general rule, an ICE investigator may not search your premises without a search warrant. However, public areas such as the parking lot or lobby can be searched without a warrant. But if an investigator requests access to private areas, you can insist upon a search warrant.

If the investigator does have a warrant, you should ask to see it and make a copy. Read the warrant carefully, and if it references other documents, ask for copies of those documents. Generally, you should comply with search warrants but provide access only to areas or items specifically identified.

Be Friendly, but Stand Firm

Regardless of the situation, never turn over entire personnel files to investigators if they are only requesting to review I-9 forms. Provide investigators only what they are requesting – nothing less, nothing more.

Finally, it’s important to establish and maintain a positive working relationship with the investigator. Use a polite, respectful tone when communicating and always express your willingness to cooperate. At the same time, you should not be afraid to assert your rights.