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Warning: ICE Build-Up a Worry for Employers Navigating I-9 Compliance

By Minnie Fu, Raazia K. Hall, Sean G. Hanagan, William J. Manning, Maggie Murphy, Michael H. Neifach, Otieno B. Ombok and Amy L. Peck
  • February 2, 2012

The Obama Administration is launching another round of worksite investigations—this time, returning to employers that have already been the subject of I-9 inspections during the last three years.  Approximately 500 employers are being re-visited by Special Agents to confirm that noncompliant activity identified during prior reviews has been remedied, according to U.S. Immigration and Customs Enforcement.  Generally, businesses must make sure they are hiring only people who can work legally in the U.S.  Businesses that previously have received warning letters or administrative fines may now be the subject of treble damages if ICE Special Agents find that, notwithstanding the prior review, the employer continues to make the same mistakes.

The Obama Administration's worksite strategy differs from that of the previous administration, which focused on high-profile raids and arrests of workers.  ICE still conducts raids, but now they are “silent” and have resulted in employers terminating significant portions of their workforce.  The Administration’s recent audits of small businesses have drawn such criticism that larger employers must be ready for the spotlight in ICE’s latest program.

Maintaining that its strategy has elevated employers’ awareness of their responsibilities, ICE is continuing a robust plan to audit thousands of businesses nationwide.  Obviously, ICE offices have kept track of employers for re-evaluation.  It has not announced plans for issuing Notices of Inspection, but it has confirmed “the agency continues to be interested in egregious employers as they tend to break other laws in addition to immigration … including paying employees under the table, avoiding taxes and ignoring employee protections.” 

An employer need not have run afoul of the law before ICE knocks on the door.  The Obama Administration has re-imposed civil fines for paperwork and substantive violations, making Form I-9 errors an expensive problem.

NOIs are ICE’s warning to companies that they have the standard three days to present the Forms I-9 of their employees for inspection.  ICE will review a company’s hiring records to determine compliance with the Immigration Reform and Control Act of 1986 (IRCA).  This initiative reflects a department-wide focus in targeting employers involved in the hiring of unauthorized workers and related criminal activity.

Certainly the Employment Compliance Inspection Center, established more than a year ago, will be a valuable resource for ICE auditors.  (See our article, New Employment and Compliance Inspection Center, No Relief from ICE Form I-9 Audits.) 

The staffing levels and regional priorities determine the number of audits each Special Agent in Charge (SAC) office will conduct.  Historically, the larger SACs, such as Los Angeles, St. Paul and Chicago, would conduct more audits than the smaller SACs, such as Baltimore and Honolulu. The latest round of 500 audits likely would be distributed in a similar manner, although there is no assurance audits will not cross state lines.

An audit may cover the employer’s entire workforce; thus, more than a single hiring site likely will be subjected to investigation if there is a concern over the quality of the employer’s I-9s or further investigation is warranted.

Finally, in an effort to combat the increasing instances of identity theft, record checks will be conducted on the identities of all current employees to determine if there are unauthorized workers in the workforce.  In the past, record checks have included commercial databases and Federal Trade Commission reports.

Next Steps

Employers should consider compliance planning before they receive a notice from ICE.  Regardless of the size of a company, receipt of a NOI should be taken seriously, particularly if the employer has been targeted before.  Receipt of a notice should trigger consultation with a designated team of experienced compliance experts for guidance through the ICE inspection process.  Following are some steps to take immediately:

  • Notify the management and executive teams
  • Notify or retain experienced immigration counsel
  • Gather I-9s and supporting documentation

We expect ICE initiatives to continue throughout 2012 (it is an election year).  Employers may consider contacting their Congressional representatives to revive interest in comprehensive immigration reform, to temper the need for enforcement efforts.  For now, diligent employers must redouble their compliance efforts, and those who have not yet started must focus their efforts on a comprehensive review of their records, policies and protocols.

©2012 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

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