Chapter 39 - § 39.5 • I-9 INSPECTIONS AND GOVERNMENT INVESTIGATIONS

• Jurisdiction: Colorado

§ 39.5 • I-9 INSPECTIONS AND GOVERNMENT INVESTIGATIONS

The U.S. Department of Labor (DOL), the U.S. Department of Justice's Office of Special Counsel (OSC), and U.S. Immigration and Customs Enforcement (ICE) are the three authorized agencies that would potentially inspect an employer's I-9s.⁴⁰ The DOL, OSC, or ICE may inspect an employer's I-9s without a warrant or subpoena.

§ 39.5.1—Legal Parameters For Inspections

The agency conducting the inspection must provide any person or entity required to retain Forms I-9 with at least three days' notice prior to the inspection.⁴¹ Though a warrant is expressly not required in the regulations for an I-9 inspection, the use of enforcement tools is not precluded. At the time of the inspection, the employer is required to make all Forms I-9 available in their original paper form, electronic form, a paper copy of the electronic form, or on microfilm or microfiche at the location where the request is made. Forms retained on microfilm or microfiche must exhibit "a high degree of legibility and readability."⁴²

§ 39.5.2—The Expansive Role Of ICE In I-9 Enforcement

ICE is the largest investigative arm of DHS. ICE has at least 24 principal field offices throughout the United States and more than 50 international offices around the world. According to ICE, worksite enforcement is targeted at fighting illegal immigration and protecting national security.⁴³ Unauthorized workers at sensitive sites and critical infrastructure facilities, such as airports, chemical plants, and sea ports, are the target of worksite enforcement investigations. Additionally, ICE investigates employers that are engaged in egregious criminal conduct and the exploitation of employees.

ICE has the regulatory authority to initiate an investigation on its own initiative and without a written complaint.⁴⁴ When ICE or USCIS receives a complaint from a third party, the regulations mandate that ICE initiate an investigation only if the complaint has a "reasonable probability of validity." In general, ICE conducts worksite I-9 audits (1) after receiving potential credible leads and articulable facts about unauthorized workers at an employer's worksite; and (2) at random through statistical methods that select employers. An employer's history of employing unauthorized aliens, the industry of the employer being investigated, the concentration of unauthorized workers in an area, and ICE's observations of persons entering and leaving a place of business are factors that may trigger an investigation.

ICE is increasing enforcement efforts, and businesses are the target of new investigation initiatives. From October 1, 2017, to May 4, 2018, ICE doubled its worksite enforcement efforts, opening 3,510 worksite investigations, initiating 2,282 I-9 audits, and making 594 criminal and 610 administrative worksite-related arrests.⁴⁵

§ 39.5.3—Actual Knowledge And Constructive Knowledge

A person or entity may not hire, recruit, or refer for a fee an alien for employment in the United States knowing that the individual is an "unauthorized alien."⁴⁶ It is also unlawful for a person or entity to continue employing an authorized alien knowing that the alien is or has become unauthorized.⁴⁷ The statutory and regulatory language in this context emphasizes that the employer must have a specific state of mind to violate IRCA's provisions prohibiting the employment of unauthorized aliens. Both the statute and regulations use the term "knowing," meaning that to violate IRCA's provisions prohibiting the employment of illegal or undocumented individuals, a person or entity must have knowledge of the unauthorized status of the individual or employee. What specifically does "knowing" mean in this context?

The law distinguishes between "actual" and "constructive" knowledge with respect to the term "knowing" under IRCA.⁴⁸ "Actual knowledge" means that the employer has ascertained certain facts about the employee or prospective employee lacking authorization for employment. "Constructive knowledge" is "knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition."⁴⁹ The USCIS regulations provide several examples of situations that may impute constructive knowledge of an employee's unauthorized immigration status onto an employer:

• The employer fails to complete or improperly completes Forms I-9; or
• The employer acts with reckless and wanton disregard for

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