Oregon joins California in requiring employers notify employees of any government investigation into a company’s Form I-9 practices. What triggers such a government investigation? An investigation is triggered by receipt of a Notice of Inspection (NOI), issued by Immigration and Customs Enforcement (ICE or HSI), which is part of the Department of Homeland Security.
ICE is the federal agency that enforces our country’s immigration laws. The Immigration Reform and Control Act (IRCA) of 1986 requires employers to verify the identity and work eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification form (the “Form I-9″_ Employers must complete the the Form I-9 within three business days of hire and maintain such form for the duration of an individual’s employment. ICE also combats against “knowing hires” and “continuing to employ” violations, where an employer knowingly hires an individual knowing they are not authorized to work or continues to employ an individual after learning they are not authorized to work or where the totality of the circumstances is such that they should know the individual is not authorized to work.
According to ICE, “in fiscal year 2018, HSI opened 6,848 worksite investigations compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively; all of these categories surged by 300 to 750 percent over the previous fiscal year.” Audits of employers’ Forms I-9 increased 340%! Click here to read more.
Back to Oregon. The governor signed Senate Bill (SB) 370 on June 6, 2019 and the law is effective as of that date. In a nutshell the bill requires Oregon employers notify employees of any ICE investigation within three business days of receipt of an NOI and also attempt individual employee notification of receipt of the NOI. This notice must be provided regarding the upcoming inspection by ICE of the Forms I-9. Click here and here to read the text of the bill. Therefore, HR professionals need to add this to the checklist of items an Oregon employer must complete upon receipt of an NOI. Two noteworthy items about the Oregon law. First, there are no penalties for non-compliance. Second, on or before January 1, 2020 the Oregon Bureau of Labor and Industries is required to provide employers with a template notification which will satisfy the requirement of SB 370. Such template must be made available in English and in each of the five most widely used non-English languages in the state.
Oregon’s law is similar to California’s law, which also requires employee notice whenever ICE seeks to review a company’s Forms I-9 pursuant to an NOI. Read more about California’s law by clicking here.
Finally, ICE recently went through another nationwide wave of issuing NOIs to employers, including here in Atlanta. Employers should be prepared to address any visit by ICE agents seeking to serve an NOI, vector them to the correct individual within your organization, and call immigration counsel (click here).