• ICE Storm Hits Southeast: What Employers Need to Know About Government Worksite Enforcement
  • April 13, 2010 | Author: Marcus M. Crider
  • Law Firm: Waller Lansden Dortch & Davis, LLP - Nashville Office
  • Immigration and Customs Enforcement (ICE) recently issued Notices of Inspection (NOIs) to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee.  The NOIs alerted businesses that ICE will inspect their I-9 hiring records to determine if they are complying with employment verification laws.

    That ICE served 180 audit notices to businesses in these five states is a direct result of the U.S. Department of Homeland Security’s (DHS) new worksite enforcement policy for ICE, which focuses on targeting employers who cultivate illegal workplaces by knowingly hiring undocumented workers.

    Under DHS’ new worksite enforcement policy, ICE will target the root cause of illegal immigration by focusing its resources on the criminal prosecution of employers who knowingly hire undocumented workers.  Further, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.  There will be less emphasis on large-scale workplace raids and greater emphasis on inspecting I-9 forms and hiring records.  

    At a recent symposium in Washington, DC, “2009 Government and Employers: Working Together to Ensure a Legal Workforce,” DHS updated private businesses and the private bar on the agency’s current worksite enforcement efforts.  Specifically, ICE announced that in 2009, the agency imposed $24 million in fines on employers as compared to 2006 when no fines were assessed.  Since the April 2009 implementation of DHS’ new worksite enforcement strategy, ICE reported that 45 businesses and 47 individuals were debarred from participating in Federal contracts compared to 2008 when no businesses and only one individual was debarred.  In addition, the ICE Worksite Enforcement Chief announced that ICE had issued more than 1,000 NOIs to employers, with an additional 1,000 new NOIs slated to be released this year. 

    Based on the initial results from the 652 NOIs issued in July 2009, ICE reported that auditors reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents, which was approximately 16% of the total number of Form I-9s reviewed.  ICE reported that 326 companies were found to be in compliance with I-9 employment eligibility verification laws or received warning notices in expectation of future compliance.  Notices of Intent to Fine were issued to 61 employers resulting in $2,310,255 in fines and 267 cases were still under review. 

    ICE indicated that the new 1,000 NOIs were generated through investigative leads and intelligence and directed at businesses tied to critical infrastructure, public safety and key resource industries.  According to ICE, these inspections/audits will result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate U.S. immigration laws. 

    In addition to DHS’ issuance of NOIs, the agency discussed the utilization of fraud units to better assess which employers might be flouting the law.  Indeed, USCIS is expanding its site visits to employers that sponsor foreign workers, with particular focus on businesses that sponsor workers under the H-1B program.  Through its use of the Fraud Prevention and Detection fee, USCIS has engaged outside contractors to conduct thousands of unannounced site visits to the worksites of employers that sponsor foreign workers.  Therefore, employers that sponsor foreign workers under the H-1B program should be prepared to receive unannounced visits from USCIS’ Fraud Detection and National Security Unit. 

    Gone are the days of small fines and/or a slap on the wrist.  DHS’ new worksite enforcement strategy clearly reflects the agency’s “get tough” approach with employers that do not comply with employment eligibility verification laws.  These days, when ICE comes calling, employers should expect that government investigations will likely result in increased civil penalties, as well as criminal prosecutions of company executives, owners and managers for harboring illegal aliens and/or knowingly hiring undocumented workers. 

    Under DHS’s new stated policy, ICE will audit and direct worksite enforcement actions in industries related to critical infrastructure, public safety and national security, as well as sectors of the economy that employ unskilled and semi-skilled workers, such as restaurants workers, retail clerks, construction trade workers, manufacturing line workers, hotel service workers, food production workers, landscape workers and healthcare aides. 

    To mitigate immigration-related liabilities and ready your company to respond to a possible I-9 audit or inspection, employers should develop best practices for worksite compliance, including:

    1. Reviewing and evaluating your company’s verification compliance policy.
    2. Conducting periodic self-audits of your company’s I-9 forms to monitor your company’s compliance with federal employment verification requirements.
    3. Completing Form I-9 for every employee (with limited exceptions).
    4. Providing training to employees in the field who are responsible for completing I-9 forms.
    5. Developing a company hot line to report violations of the law and establishing protocols for follow-up on calls from tip lines, complaint lines, etc.
    6. Appointing a compliance officer with ultimate responsibility for employment verification compliance.
    7. Developing a written policy regarding whether to photocopy I-9 documents.
    8. Establishing a “tickler” system to provide alerts for status/employment authorization expiration dates.
    9. Implementing a zero tolerance policy for individuals who are not work authorized. 
    10. Developing increased awareness of identity fraud and fraud detection techniques.