Government Speakers Present on I-9 and E-Verify Issues

by John Fay on March 16, 2011

Today, I attended the New Jersey Institute for Continuing Legal Education’s 11th Annual Immigration Conference, which provided an in-depth look at several hot immigration issues including our favorite topic, Form I-9 enforcement and E-Verify. Moderated by attorney Neil Dornbaum, the conference featured a who’s who of government speakers from several agencies (USCIS, ICE, DOJ, DOL), as well as representatives from Congressional offices, academia, think tanks, and the US Chamber of Commerce.

The session on I-9 and E-Verify, moderated by attorney David Grunblatt, was comprised almost entirely of leading government officials, including Brett Dreyer, Unit Chief, Worksite Enforcement Unit of ICE; Kathy Lotspeich, Deputy Chief, Verification Division of USCIS, and Jennifer Sultan, Civil Rights Division of the Department of Justice. Each one of the speakers spent a few minutes describing their respective agencies and goals with respect to employment eligibility verification, while also relaying the latest developments in their field. The overall message will sound familiar: we can expect increasing I-9 enforcement, expanding E-Verify, and the ever-watchful eye of the DOJ to keep everyone in line. But let’s take a closer look at some of the more interesting news from New Jersey.

ICE Update – Brett Dreyer
After 25 years of experience, the agency’s current strategy involves a 2 prong approach: (1) Criminal prosecution against those bad-acting employers who are exploiting unauthorized workers, committing document fraud, tax crimes, etc; and (2) Civil tools, including the Form I-9 inspection. They are also committed to doing outreach and education, which is primarily achieved through the IMAGE program (which promotes 12 best practices, including the use of E-Verify). In addition, ICE is now using the debarment process against companies found to be violating the immigration laws (either criminally or civilly). Debarment essentially involves preventing a company from getting government contracts, loans, grants, insurance etc.

In the last 5 years, ICE has reinvigorated the Form I-9 inspection program by vastly increasing the number of audits. Recently, ICE established a national audit center to handle the overflow from local offices and enable the auditing of large employers. So how does ICE pick an organization for audit? Contrary to popular opinion, it is generally not by random selection. ICE’s predecessor, INS, used this tactic (auditors would pick companies out of Dun and Bradstreet), and it was generally considered ineffective. Likewise, ICE does not deliberately target specific industries (although in practice, many low scale/low paying industries are affected). So instead, companies are chosen based on leads and intelligence (public, law enforcement, business competitors, etc.)

If I’m subject to an audit, will I receive a subpoena? This ultimately depends on the employer, the allegations, and other factors. In some situations, employers will simply receive a letter requesting documents whereas in other a formal subpoena will be used.

Will ICE forgive errors which are corrected by the employer? It depends. If they are technical violations, ICE will provide the required 10 days to correct them. For substantive violations (e.g., failing to complete an I-9 at all), ICE will be less likely to forgive the employer if they are remedied after the investigation. The goal of the program is to encourage employers to proactively address the I-9 problem before ICE comes knocking at the door. If substantive violations are corrected after the investigation, it’s generally too late – you’re going to get fined. ICE is much more sympathetic to the employer who made corrections prior to the investigation.

E-Verify Update – Kathy Lotspeich
After giving a brief overview of how E-Verify works (submitting I-9 information, dealing with TNCs, etc.), Kathy spoke a little about the FAR requirements for federal contractors which went into effect in September 2009. Despite the increase in queries from FAR submissions (many of which involved data from old I-9s), the USCIS reports there were not an excessive number of TNCs. Kathy also discussed the recent Westat report and the increasingly lower number of TNCs during the past few years.

Next, Kathy addressed a frequent concern of some employers – the notion that E-Verify has been expanding monitoring and compliance functions in an effort to “mineâ€