On July 1, 2009, U.S. Immigration and Customs Enforcement (ICE) initiated a massive inspection campaign that further evidences its increased focus on employer compliance with immigration laws. ICE has issued Notices of Inspection (NOIs) for Form I-9 audits to 652 businesses across the United States – more NOIs than ICE issued throughout all of fiscal year 2008. These audits were not randomly generated; rather, the target businesses were "selected for inspection as a result of leads and information obtained through other investigative means."
The Background Most Employers Know
The Immigration Reform and Control Act of 1986 makes it unlawful for an employer to knowingly hire or continue to employ an alien who is not authorized to work in the U.S. To verify a potential employee's eligibility for hiring, employers are required to complete and retain a Form I-9 for each individual they hire. In completing the form, employers must examine and record an individual's identity documents and determine whether they reasonably appear to be genuine and related to the individual.
Employers who do not properly complete, retain, or make I-9 Forms available for inspection are subject to civil fines ranging from $110 to $1,100 per individual I-9, while fines for knowingly hiring or continuing to employ unauthorized workers range from $275 to $16,000 per violation. Employers determined to have engaged in a pattern or practice of knowingly hiring or continuing to employ unauthorized workers are subject to criminal penalties of up to $3,000 per unauthorized employee and/or 6 months of imprisonment.
The New Campaign
This new I-9 audit initiative marks another phase of the enforcement strategy that ICE commenced in April 2008. Under that strategy, ICE has acknowledged that it "is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers." New Assistant Secretary of Homeland Security John T. Morton, a former federal prosecutor who now heads ICE, recently testified before Congress about "a clear shift in how ICE now conducts worksite enforcement." ICE's new enforcement strategy is "to (1) penalize employers who knowingly hire illegal workers; (2) deter employers who are attempting to hire illegal workers; and (3) encourage employers to take advantage of compliance tools and best practices." Morton also testified that in implementing this new strategy, ICE will employ "both the criminal investigation of employers and the use of administrative tools such as Form I-9 audits and civil fines." Employers with federal contracts will also be subject to debarment.
What Should You Do
In light of the audit campaign, companies should: examine your existing procedures and controls for compliance with the IRCA rules and your I-9 eligibility verification requirements. If you receive a NOI, you should promptly contact counsel to assess the scope and quality of its compliance and implement a strategy for responding to the NOI. (Counsel may also be of assistance in negotiating modifications to the NOI to reduce the burden of compliance.)
Kelley Drye has Labor, Immigration and Compliance attorneys who could assist you with all of those forms.
For more information on this client advisory, please contact:
Richard B. Solomon