Thread: Warning: Employers Revisited by ICE for Past I-9 Mistakes

Warning: Employers Revisited by ICE for Past I-9 Mistakes

by Kevin Lashuson February 1, 2012

[Editor's Note: today's blog is courtesy of Kevin Lashus of Jackson Lewis LLP] The Obama Administration is launching another round of worksite investigations — this time, returning to employers that have already been the subject of I-9 inspections during the last three years. Approximately 500 employers are being re-visited by Special Agents to confirm that noncompliant activity identified during prior reviews has been remedied, according to U.S. Immigration and Customs Enforcement. Generally, businesses must make sure they are hiring only people who can work legally in the U.S. Businesses that previously have received warning letters or administrative fines may now be the subject of treble damages if ICE Special Agents find that, notwithstanding the prior review, the employer continues to make the same mistakes.

The Obama Administration’s worksite strategy differs from that of the previous administration, which focused on high-profile raids and arrests of workers. ICE still conducts raids, but now they are “silent” and have resulted in employers terminating significant portions of their workforce. The Administration’s recent audits of small businesses have drawn such criticism that larger employers must be ready for the spotlight in ICE’s latest program.

Maintaining that its strategy has elevated employers’ awareness of their responsibilities, ICE is continuing a robust plan to audit thousands of businesses nationwide. Obviously, ICE offices have kept track of employers for re-evaluation. It has not announced plans for issuing Notices of Inspection, but it has confirmed “the agency continues to be interested in egregious employers as they tend to break other laws in addition to immigration … including paying employees under the table, avoiding taxes and ignoring employee protections.”

An employer need not have run afoul of the law before ICE knocks on the door. The Obama Administration has re-imposed civil fines for paperwork and substantive violations, making Form I-9 errors an expensive problem.

NOIs are ICE’s warning to companies that they have the standard three days to present the Forms I-9 of their employees for inspection. ICE will review a company’s hiring records to determine compliance with the Immigration Reform and Control Act of 1986 (IRCA). This initiative reflects a department-wide focus in targeting employers involved in the hiring of unauthorized workers and related criminal activity.

Certainly the Employment Compliance Inspection Center, established more than a year ago, will be a valuable resource for ICE auditors. (See our article, New Employment and Compliance Inspection Center, No Relief from ICE Form I-9 Audits.)

The staffing levels and regional priorities determine the number of audits each Special Agent in Charge (SAC) office will conduct. Historically, the larger SACs, such as Los Angeles, St. Paul and Chicago, would conduct more audits than the smaller SACs, such as Baltimore and Honolulu. The latest round of 500 audits likely would be distributed in a similar manner, although there is no assurance audits will not cross state lines.

An audit may cover the employer’s entire workforce; thus, more than a single hiring site likely will be subjected to investigation if there is a concern over the quality of the employer’s I-9s or further investigation is warranted.

Finally, in an effort to combat the increasing instances of identity theft, record checks will be conducted on the identities of all current employees to determine if there are unauthorized workers in the workforce. In the past, record checks have included commercial databases and Federal Trade Commission reports.

Next Steps

Employers should consider compliance planning before they receive a notice from ICE. Regardless of the size of a company, receipt of a NOI should be taken seriously, particularly if the employer has been targeted before. Receipt of a notice should trigger consultation with a designated team of experienced compliance experts for guidance through the ICE inspection process. Following are some steps to take immediately:
◦Notify the management and executive teams
◦Notify or retain experienced immigration counsel
◦Gather I-9s and supporting documentation

We expect ICE initiatives to continue throughout 2012 (it is an election year). Employers may consider contacting their Congressional representatives to revive interest in comprehensive immigration reform, to temper the need for enforcement efforts. For now, diligent employers must redouble their compliance efforts, and those who have not yet started must focus their efforts on a comprehensive review of their records, policies and protocols.

Warning: Employers Revisited by ICE for Past I-9 Mistakes - The I-9 and E-Verify Blog

Well that is good news. Finally the citizens will get the jobs and not illegals. Yay!

What would truly be good news would be if the Federal Government started checking all I-9 information in Washington as they were supposed to do, but never really have done.

After the 1986 Reagan Amnesty which they told the public was for 300,000 and became amnesty for 3 million... Americans were promised a new system that would make it impossible for illegal aliens to steal American jobs ever again. The miraculous I-9 form would do the trick.

Then we find out 30 years later and with 20 million more illegal aliens taking American jobs that nobody in Washington has been checking those I-9 forms on their end all these years.

Mondaq Business Briefing February 10, 2012 Friday United States: ICE Revisits Past I-9 Offenders With New Round Of Audits

Valentine Brown

In the past few weeks, Immigration and Customs Enforcement (ICE) has initiated a new round of I-9 investigations targeting employers who have been cited for I-9 violations in the past 3 years. Audit notices have been sent to about five thousand such employers requesting review of all new I-9s as well as previously audited I-9s. These records will be reviewed to make sure that past violations have been corrected and have not been repeated in newly completed I-9s. Employers may be charged with treble damages when they are found to have continuing I-9 errors from their initial audits, and/or to have committed the same errors again on recently prepared I-9s. ICE investigations under the Obama Administration, although less dramatic than the well-publicized raids under the Bush Administration, where undocumented workers were lined up, arrested and eventually deported, are no less troublesome and disruptive for employers. Often these "silent" raids like their predecessors also result in the identification of suspect documents and undocumdnted workers. During the audit, ICE will review all I-9s for technical and substantive violations as well as verify the immigration/citizenship status of all workers. If a worker turns out to be undocumented, he/she must be terminated from employment, or the employer will face criminal and civil penalties for continuing to employ an undocumented worker after learning of his/her status. The significant increase in fines that may be levied in a re-audit situation is a strong motivator for ICE agents, so employers should be wary of ICE officers who seem helpful, and who sometimes even discourage employers from correcting technical I-9 violations. To avoid initial or repeat I-9 penalties, employers need to take steps to ensure their I-9 compliance system is solid. Specifically, employers who have been audited, should ensure that all required corrections were made; suspect documents were investigated, and any undocumented workers removed from employment. These employers should also conduct a self-audit on all I-9s created after the ICE audit. Continuing and common reoccurring violations should be quickly corrected and addressed through training of staff and reediting of the forms to ensure that corrections were done properly. Employers who have not yet been audited, should review all I-9 policies and procedures to ensure they are up to date with all of the latest guidance from USCIS and the Department of Justice. Personnel tasked with I-9 completion should be re-trained in light of the numerous changes to I-9 policy guidance from USCIS as well as to the list of acceptable documents. This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice. Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. The Duane Morris Institute provides training workshops for HR professionals, in-house counsel, benefits administrators and senior managers. Ms Valentine Brown Duane Morris LLP 30 South 17th Street Philadelphia 19103-4196 UNITED STATES LexisNexis News - Latest News from over 4,000 sources, including newspapers, tv transcripts, wire services, magazines, journals.

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