The INS may come to your workplace either through an INS or DOL visit to check that the employer has properly filled out I-9 forms on each person hired, or an INS "raid" to catch undocumented workers. While the DOL is normally more involved with wage and hour regulations and other labor laws, they may also request to see your I-9 forms. You can either show them the forms on the spot, or alternatively, the law gives you the right to request three days’ time before having to present the forms. If you show the DOL the forms immediately, and they notice irregularities or feel you are not complying, they may notify the INS to do a compliance check. If you request three days’ time from the DOL to produce the I-9 forms, they will likely notify the INS of that fact and it is more likely that the INS will return rather than the DOL to carry out a regular compliance check.
There is no standard way to formulate strategy to deal with these situations, or the other situations outlined in this article. In general, however, if you have any questions or feel you need more time to prepare, there is no harm in taking time to call your legal counsel or requesting the three days.
If you are visited by the INS rather than the DOL, they will likely be conducting a compliance review. Again, when in doubt, you may ask for three days’ notice before showing the I-9 forms, and you may also ask to bring the I-9’s to the INS office, instead of letting them come to you, to avoid disturbing your workplace. Except where the INS has a subpoena or warrant, federal law requires that the company receive three days’ notice of the government’s intention to conduct an inspection of verification records.
In addition to INS compliance visits, there is a more serious "inspection visit" or "raid," and the procedures vary considerably. While INS has the right to review the I-9 forms without issuance of a subpoena or warrant after proper notice has been given, INS generally otherwise does not have the right to enter your workplace unless they have a warrant, signed by a judge or magistrate, listing the persons they want to see, presented within ten days of being signed. It is possible that the INS will appear and try to convince management to let the INS carry out an inspection without a warrant. Many employers prefer to deny entry in such circumstances to employee areas, as opposed to office areas, to review I-9 forms. Where the INS does have a warrant, it should be read very carefully, and also the name, telephone number and business card of the lead INS agent should be retained. Most employers choose to limit the INS to the terms of the warrant.
Employers can better protect themselves during an INS inspection or raid by going with the INS officials as they walk around. Notes should be maintained as to what transpires, and whether they limit their search to the terms of the warrant. Reports persist of INS being somewhat abusive during raids, and notes should be made of whether they question all the workers or only the ones that look "foreign," how they treat workers who exercise their right not to answer INS questions, etc.
It is not a good idea to allow the INS or DOL to take original I-9 records with them. Photocopies should be prepared for the agents to take. Likewise, as a general rule, many employers do not allow the INS to interview employees unless there is a warrant. Occasionally the INS takes the position that it has the right to see not only I-9 forms but also other company records. In general, the employer is better off to separate the I-9 forms from other records and not just turn the INS loose in the employer’s personnel files. If in the process of reviewing forms prior to a compliance review the employer notices any errors, the correction should be made immediately with the change reflecting the current date. Correction of technical mistakes made before a review will usually not be the subject of fines, or at least the fines will be mitigated.
Source: "Employment Law Bulletin", July 1998.
Author: James W. Wimberly, Jr.
Firm: Wimberly, Lawson, Steckel, Nelson & Schneider, P.C., 3400 Peachtree Road, N.E., Suite 400, Atlanta, GA 30362-1107, 404-365-0900.