Immigration Compliance: Employer Preparedness For The U.S. Department Of Homeland Security's Comprehensive Worksite Enforcement Strategy

Immigration Compliance: Employer Preparedness For The U.S. Department Of Homeland Security’s Comprehensive Worksite Enforcement Strategy

On March 2, 2010, U.S. Immigration and Customs Enforcement (“ICE”), the largest investigative arm of the Department of Homeland Security, issued Notices of Inspection to 180 businesses in Louisiana, Arkansas, Mississippi, Tennessee, and Alabama, alerting employers that ICE will be auditing their hiring records to determine whether they have complied with employment eligibility verification laws and regulations. These audits involve comprehensive reviews of the employer’s I-9 forms, which employers are required to complete and retain for all employees.

The March initiative was the third mass issuance of Notices of Inspection since ICE announced in April 2009 that it would implement a comprehensive strategy aimed at reducing the demand for illegal employment and protecting employment opportunities for the nation’s lawful workforce. On July 1, 2009, ICE announced the issuance of Notices of Inspection to 652 employers nationwide, more than had been issued in the entire prior fiscal year, and in November 2009, ICE announced the issuance of another 1,000 Notices of Inspection.

Since realigning its priorities in April 2009, ICE has dramatically increased enforcement of immigration-related employment laws. According to ICE Assistant Secretary John Morton, “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.”

The statistics reflect the sentiment expressed by Secretary Morgan. ICE debarred 45 businesses and 47 individuals from participating in federal contracts and issued 142 Notices of Intent to Fine totaling $15,865,181 between April 30, 2009, and November 19, 2009. In contrast, ICE debarred only a single individual and no businesses, and issued only 32 Notices of Intent to Fine totaling $2,355,330 in all of fiscal year 2008.

The most recent wave of Notices of Inspection should serve to remind employers across the country of the increased risk of failing to properly manage the employment eligibility verification process. Even minor errors in I-9 paperwork can expose an employer to fines and a systematic deficiency in the management of the employment eligibility verification process could be financially devastating. Furthermore, intentional errors or deliberate neglect of an employer’s obligations to verify employment eligibility can result in the criminal prosecution of those responsible.

In light of the risks of failing to maintain accurate and complete I-9 paperwork, employers are reminded of the importance of conducting periodic systematic reviews of their verification compliance policy and periodic internal I-9 audits to ensure that an accurate Form I-9 is on file for all employees. Additional precautionary measures which may be helpful in limiting potential immigration-related liability include the provision of specialized training to employees responsible for preparing and completing I-9 forms and developing a policy for tracking employment authorization status changes.