On Nov 20 2009

ICE Announces More I-9 Audits

On November 19, 2009, Immigration and Customs Enforcement (ICE), the agency responsible for investigating immigration violations and enforcing immigration laws at the worksite, announced that it was issuing 1,000 new Notices of Inspections (NOIs) to employers across the country.

In particular, ICE announced that it would target employers located at critical infrastructure sites which include airports, military bases, defense facilities and seaports.  This announcement comes on the heels of a summer which saw the issuance of NOIs to 652 employers across the country.  Secretary of ICE, John Morton stated, “ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces.  We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”

Morton went on to explain that the businesses that were to receive the NOIs were selected for inspection as a result of investigative leads and intelligence, as well as their connection to public safety and national security.  DHS did not release the names and locations of the businesses to be audited due to the ongoing, law enforcement nature of the investigations.

As Klasko Law reported earlier this year, ICE’s main priority in worksite enforcement actions is to target employers who knowingly hire unauthorized aliens in violation of federal law.  An internal ICE memo released to the public through a freedom of information act earlier this year indicated that the agency views worksite enforcement investigations against employers as the best means of targeting and curbing the root causes of illegal immigration.  As such, ICE has made the criminal prosecution of employers who knowingly hire undocumented workers their top priority.  This includes the imposition of criminal charges against owners, corporate managers, supervisors and others in the management structure.

However, as ICE investigations to date have shown, employers who make inadvertent errors on their I-9 forms or in the verification process are held liable by the agency for civil penalties in the event of an audit.  The current focus on investigations and prosecutions is a significant departure from the days of legacy INS when employers could expect a slap on the wrist in the form on minimal fines as just another cost of doing business.  In this era of increased enforcement, employers must proactively preempt immigration related liabilities.  Employers should conduct internal I-9 audits to identify issues and correct violations.  Part and parcel of these reviews should be an evaluation of the employers’ current record keeping practices, to determine if new training programs are needed for HR personnel.  Immigration counsel can be invaluable during these times in developing best practices including establishing protocols for the verification of the identity and work eligibility of new hires, advising employers on safeguards against discrimination in the I-9 process and advising on the use of E-Verify.

In addition, United States Citizenship and Immigration Services and ICE announced that they were launching a new I E-Verify campaign to recognize the 170,000 employers nationwide that have registered for E-Verify.  E-Verify is an internet-based Employment Eligibility Verification System run by USCIS that allows employers to electronically verify the employment eligibility of certain employees.  To use E-Verify, an employer enters employee information from the Form I-9 into the web-based system.  E-Verify then runs that information against records in the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases to confirm whether the employee is authorized to work in the United States.