Multistate Monday: Employment Verification and Immigration Inspections, Part I

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Dee Anna Hays: Hello everyone, and welcome to another installment of our Multistate Monday podcast series, which focuses on topics that we hope are of interest to our Ogletree clients and friends that operate in multiple jurisdictions across the country. I am Dee Anna Hays, Co-Chair of Ogletree Deakins’ Multistate Advice and Counseling Practice Group, and a shareholder in the Tampa office. And today, I am joined by Susan Gorey, senior counsel in our Indianapolis office, and a member of our practice group. Susan had been on the podcast many times. Welcome, Susan.

Susan Gorey: Hello, everyone.

Dee Anna Hays: And also, Stephanie Generotti, who is of counsel in the Tampa office with me here in sunny Florida. So, thank you, Stephanie, for joining us.

Stephanie Generotti: Pleasure to be here.

Dee Anna Hays: So, Stephanie, do you want to say just a couple of things about your practice so the audience can get to know you?

Stephanie Generotti: Absolutely. I, as Dee Anna said, work out of the Tampa office, and my focus is two-part. One, I am a traditional single plaintiff, labor and employment attorney handling claims of discrimination and retaliation. And then, I also work closely with our immigration compliance team, focusing on ensuring employers are compliant with I-9 rules and regulations as well as E-Verify laws throughout the country, and specifically with a heavy focus on Florida, but monitoring the other states as well.

Dee Anna Hays: Thanks for sharing that. We’re really happy to have you on today with your dual expertise there. And one of the first topics we wanted to go over is just the change potentially that we’re seeing in E-Verify requirements across the country. Of course, E-Verify is a federal law, but states can put their own unique spin on it. Some states already have some specific requirements when it comes to who is required to use E-Verify, and there are a lot of bills pending right now that could enhance those requirements or change. And just one example, in our home state of Florida, there is a bill that is currently pending that would remove the minimum threshold of 25 employees that is in place for E-Verify and would require all employers in Florida to use E-Verify. Stephanie, is that one of the bills that you’ve been tracking?

Stephanie Generotti: Absolutely. This would have wide implications for our state if it indeed passes. There’s been three that have been introduced, two are identical, and a little more aggressive on the requirements. Those aren’t seeming to get much traction at the moment, but the third, which is a little more relaxed on the penalty phase, but is more focused on eliminating that minimum threshold of required employees for private employers from 25 to 1. And if that were the case, that would mean every private employer in this state would be required to E-Verify its entire workforce. And while E-Verify running them through the federal database isn’t necessarily arduous task at hiring, it definitely is just an added step that employers need to be aware of in the event of non-compliance, it would cause potentially some havoc on employers’ licenses.

Dee Anna Hays: Sure, absolutely. And if you’re in Florida and that has piqued your interest, it is House Bill 955 in case you’d like to track that one. And uniquely, it doesn’t have a companion bill in the Senate.

Susan Gorey: Isn’t it true that there are several states, this legislative session, that have introduced either similar bills or same bills? I think Montana, even my home state of Indiana, Texas, and Idaho are among a few. Is that right?

Stephanie Generotti: That is correct. Well, E-Verify is a federal database. It’s not necessarily something that is a federal law, in that it is not federally required to be used. However, multiple states can take it upon themselves to pass legislation requiring states, or their state employers, to use E-Verify. With the current administration’s focus on combating illegal immigration, multiple states, Idaho, Indiana, Montana, and Texas being the forefront of them, along with Florida, have introduced legislation to require employers, private employers specifically to use E-Verify.
So, for example, in Idaho, it’s been introduced that all employers should be E-Verifying their workforce, whereas in Montana, it’s 50 or more. And so, we see a lot of this type of legislation in our border states more specifically, because those are areas in which the administration is focusing on combating illegal immigration and illegal workforce as a result.

Dee Anna Hays: And knowing that and knowing that we have these border states and also a lot of the states in the Southeast that are current increasing potential enforcement or have increased enforcement when it comes to use of E-Verify and potential audits, I think there’s been a general concern that perhaps the floodgates are going to open when it comes to I-9 raids and audits and inspections from ICE. So, we thought it might be helpful to start with just an overview about what to expect if you are subject to a civil ICE inspection. And Stephanie, can you kind of lead us off just explaining what is a civil ICE inspection that is not warrant-based, and how might that occur?

Stephanie Generotti: Yeah, so ICE is the Immigration and Customs Enforcement. It’s otherwise the federal agency that handles enforcing the governments or the federal government’s immigration laws. And there are a couple of ways in which they might have what we call a civil inspection or a non-warrant-based inspection. And that’s when either ICE agents or the Department of Homeland Security or Homeland Security Investigations, and we’ll all just refer to it generally as ICE, might come to either a workplace, or in some small instances an employee’s home, to inspect some pieces of the workforce, whether it is the paperwork to insurance and check or just really to informally drop in.
We characterize them into three separate types of encounters that you might see. First, you would have what we call a site visit, which is merely to verify an employer’s compliance with a work visa program. Then, you might have an I-9 inspection or an I-9 audit, which is essentially a subpoena for a company’s I-9 documentation to ensure compliance. And then the third, you might see as what we refer to as an informal drop-in where these agents might just show up under the guise of trying to help with a company’s I-9 compliance.

Dee Anna Hays: So, knowing that any of these various types of inspections or audits could occur at any time, what are some initial suggestions or some action items that employers might want to consider taking now?

Stephanie Generotti: So, the first and foremost most important thing that employers should consider is identifying basically a point of contact. So, you might have multiple different offices, or you may have one office, but usually there’s someone at the front, we’ll call frontline employee who greets individuals or visitors that might come in. And so, that’s obviously going to be the first person that an ICE agent might interact with in one of these non-warrant-based type encounters. So, in all three instances, it’s really important that that frontline employee understand that if some government agent should show up, who should that employee contact, whether it be somebody in HR on site, somebody in the legal department, or really just someone else in management that you might have depending on the size of your workforce who has a little bit more knowledge and training on what the company should do in the event there’s one of these ICE inspections on a civil basis.

Susan Gorey: Stephanie, you had mentioned previously that in some small instances the government could do these types of, quote, “site visits” at an employee’s home. Can you explain that? Because I know some companies still have hybrid work and some remote work, so do they actually visit employees’ homes?

Stephanie Generotti: We’ve seen an uptick more of visits at employees’ homes. So, the fraud detection and national security director at FDNS is a division of USCIS that investigates and confirms an employer’s compliance with its stated work visa program. So, when an employer sponsors a visa for an employee, as part of it, there is a whole list or explanation of where the employee’s going to work, what they’re going to do, and how they’re going to comply with the requirements of the visa program with the uptake of remote work. Now these site visits are taking place at employees’ homes because there’s no physical office that these employees report to. Let’s say pre-COVID, not a lot of remote work in this space. And so, these site visits would take place at the employer’s location, which obviously provided with a little more of a buffer or barrier between ICE or USCIS and the employee.
Now this is happening at the employee’s home, which is obviously a little scary for the employee. And so, we are seeing it more and more frequently in the sense that they’re happening remotely. Now, these types of site visits might not be as pronounced as, say, an I-9 audit or an informal drop-in, but they have been known to happen, and it’s definitely not an adversarial process, but it could feel like one. But the most important thing to advise or remind employees is there’s no warrant. This is not any sort of site visit to your home. You don’t have to let anyone inside. It’s really just to ensure that the proper paperwork is complying with what’s actually taking place.

Susan Gorey: So, should they also have a point of contact and inform the company prior to even engaging with the agent?

Stephanie Generotti: Absolutely. So, the whole point or the whole thought really is that the employee should be polite and take whatever paperwork and a card or contact information, and the employee should have a contact for who to call at their job in the event something like this happens. Now, it could also just be their supervisor, but then their supervisor might need to also be aware on, okay, my employee has received this paperwork or this visit, what do I do? And so, we just want to make sure that that point of contact is aware of all these different types of scenarios that could take place.

Dee Anna Hays: I think that’s a great point, and I think it’s useful and something employers might want to consider in general. If you get contacted by a government agency that indicates they want to do some sort of inspection or investigation related to the company’s records, they could have someone they could reach out to if that happens. And then certainly if they’re not remote, whoever controls access to the facility would need to have that information, as well. So, in addition to designating the point of contact of who would actually interface with the government agent, what should your reception area employee, for lack of a better term, do if someone says, “I’m from the government and I’m here to help”?
Clearly, not to panic, to put them either remain in the lobby area if there is one or put them in a private conference room and let them know that they’re going to get the appropriate corporate representative to come and talk with them so that they can get what they need. And taking that pressure off of the reception area employee having to have all the answers, and also hopefully avoiding that government agent just saying, “Come on in and have access to the facility and walk around and let me show you what you need.” Without the appropriate person knowing about it.

Stephanie Generotti: Exactly. And that’s actually a great segue into that second version. A civil ICE inspection is one that’s the most common that I would say is these I-9 inspections or an I-9 audit. Because normally, how that will start is you have an agent usually show up with the auditor. They’re usually plain clothes, they’re not coming in guns blazing by any means. And they come with what’s the equivalent of a subpoena, and they say, “I’m here to do a Homeland Security investigation, and we’re going to do an inspection of your I-9 paperwork.” And I’m sure the receptionist or the frontline employees would be like, “What?” It’s great to have that person be aware, “Okay, I need to contact Susan in the HR department when something like this happens.” And so, then the designated point of contact can come out and provide that interface with the agent.
We always like to tell employers that their frontline employees should be pleasant, offer a glass of water. They set them aside in a conference room. But don’t sign anything; don’t offer any information. ICE agents in an I-9 inspection like to say, “Well sign right here, and you can waive that three-day period and just give me your stuff right now.” Well, that’s not great. You want to make sure that you call through your documents before you’re responding to this subpoena. And so, having that plan in place ahead of time will speak volumes for any of these types of encounters, but even most specifically, an I-9 audit.

Dee Anna Hays: And knowing that that three-day production time is in place, is there anything that an employer would need to be prepared to provide on the spot?

Stephanie Generotti: No. It’s usually they give a three-day business day timeframe, and they typically like to show up on a Thursday or a Friday to really freak out the employers and force them to work all weekend to gather up their documentation to produce by the following week. But there’s no need and no requirement to hand anything over in that initial encounter. There might be a signature that you have that you’ve received a subpoena, so to speak. But other than that, you shouldn’t give anything to the agent. Just be polite about it. Say, “Thank you, we’ve received it, and we’ll be in touch accordingly.” And that should be their cue to leave.

Dee Anna Hays: I’m sure that is welcome news for some folks listening that they don’t have to provide anything immediately and can take the time to digest or seek legal counsel if they need help.

Stephanie Generotti: Absolutely, and while our advice or our recommendation of course is not to change anything when you produce it, it’s still always a great idea to contact legal counsel even just to guide through the process because as you can imagine, a government subpoena, it’s a little confusing and a little convoluted. And so, it helps digest what’s really being sought and what you really don’t necessarily need to produce to the government.

Susan Gorey: Stephanie, I have a quick question with regard to the frequency of these. I know you touched on them previously, and in addition to that, you also had mentioned that they do show up for these non-warrants in plain clothes. Do they have firearms or side weapons or vests or is that for the other type of investigation?

Dee Anna Hays: The auditor, the person who’s actually reviewing them, is not an agent, so they will show up in plain clothes, no weapon, no nothing. They might have a badge just to signify who they are. They may show up with an agent as a support. The agent’s usually in plain clothes. They might have a side weapon with them, but it’s definitely not an adversarial process at all. Unless, of course, the employer or the representative is a little adversarial. You also asked about the frequency. The first Trump Administration, I-9 audits increased like tenfold from the prior administration. They pulled back quite a bit during the Biden Administration, but we anticipate the figures will increase again during the second Trump Administration.

Susan Gorey: Can you give our listeners an idea to how many? What are the actual numbers happening, and what have you seen thus far with these types?

Stephanie Generotti: Yeah, so in the last year of the Biden Administration, we saw about 250 to 300 I-9 audits that were reported nationwide. In the final year of the Trump Administration that was reported, which I believe was 2019 because COVID with being 2020 was a little wonky, it was somewhere up in the 5,000, so it was a lot more. And our government contacts seem to believe that it’s going to increase to maybe not that high again, but definitely much more into probably the low thousands.

Dee Anna Hays: Really interesting. I think it just shows that this is very timely. So, thank you again, Stephanie, for joining us and for telling us a little bit about what to expect if there is an informal or non-warrant-based visit from ICE and how to initially respond and prepare. And we’d love to have you back on another podcast so that you could tell us about the other type of inspection, which would be warrant-based and is more adversarial.

Stephanie Generotti: Thank you so much for having me. I really appreciate it.

Susan Gorey: Thank you, Stephanie.

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