Homeland Security Targets Employers’ Immigration Compliance

Investigations and audits of Form I-9 documents by U.S. Immigration and Customs Enforcement (“ICE”) agents are on the rise, and the Obama administration is promising to keep the heat on employers in the coming year.

In April, ICE announced that it had fined 14 Massachusetts companies a total of $175,000 last year following audits of their Forms I-9, which requires employers to verify each newly hired employee’s identity and employment authorization documents, such as a United States passport, Social Security card, driver’s license or employment authorization card.

That is just a small measure of ICE’s overall enforcement efforts. A report by the Inspector General of the Department of Homeland Security issued in February found that ICE had fined employers from across the country a total of $31.2 million for Form I-9 violations between 2009 and 2012.  Those fines were the result of audits conducted at 9,140 employers.

But the fines tell only part of the story: ICE has also criminally charged employers for violations. In 2012, it arrested more than 240 business owners, managers, supervisors or human resources employees for their part in schemes to avoid Form I-9 requirements.

There was some good news for employers in the Inspector General’s report. It found that ICE’s  negotiation of fines with employers led, in some cases, to substantial reductions in the fine amount.  Overall, negotiations and settlements with employers reduced initial Notices of Intent to Fine from $52.7 million to $31.2 million in final orders, an average reduction of 40 percent.

The Inspector General’s report also found that ICE prioritizes its enforcement efforts on 18 principal critical infrastructure sectors: Agriculture and Food; Banking and Finance; Chemical; Commercial Facilities; Communications; Critical Manufacturing; Dams; Defense Industrial Base; Emergency Services; Energy; Government Facilities; Healthcare and Public Health; Information Technology; National Monuments and Icons; Nuclear Reactors, Materials and Waste; Postal and Shipping; Transportation Systems; and Water.

In addition, the Inspector General found that some regional offices, such as Denver and Chicago, are more aggressive in issuing fines following inspections compared with other offices. The Inspector General, however, did not review the Detroit regional office, which oversees operations in Ohio.

So, how can employers best prepare for a potential ICE audit? For most organizations, it starts with a thorough self-audit of their existing Forms I-9, their current processes and their past practices. Employers can use this self-audit to develop new policies and training exercises to standardize the company’s I-9 practices.  These steps are especially important for employers that have high turnover rates, a large number of employees and multiple worksites.

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