Where Are Your I-9's? Can't Seem to Find Them? Tell it to the Judge

U.S. Immigration and Customs Enforcement (ICE) launched a nationwide I-9 audit initiative on July 1, 2009, issuing Notices of Inspection (NOIs) to 652 employers (see the ICE press release). This action confirms the new method of enforcement promised by representatives of the Obama Administration. In April 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano indicated that ICE would focus its worksite enforcement program resources on the criminal prosecution of employers that knowingly hire illegal workers and that ICE would use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

Employers that are subject to an I-9 audit must be aware that ICE investigators may explore possible criminal charges against employers. In 2009 alone, ICE has issued over 50 news releases related to criminal prosecutions brought in the context of restaurant operations.

The recent blitz does not appear to be mere window dressing. In mid-August, John Morton, the new chief of ICE, said that the agency is set to increase the number of companies it will audit and systematically impose fines on violators. Violations could also lead to criminal charges, he said.

Key advice for employers: be careful during what may appear to be a simple I-9 audit. Seemingly innocent actions such as mentioning "I knew they were illegal," improperly completing an I-9, ignoring Social Security No-Match letters and other such activities can be combined to create a case for knowingly employing or harboring illegal aliens. Taking steps in advance to audit existing I-9 records and following up on no-match issues, along with involving counsel as soon as an investigation starts, can help reduce future exposure.