Sending a clear message that there will be no abatement in the
aggressive federal enforcement of U.S. immigration laws,
Immigration and Customs Enforcement ("ICE") announced the
creation of an Employment Compliance Inspection Center
("ECIC") in Crystal City, Virginia on January 21, 2011.
This center will be home to 15 auditors who will support ICE's
worksite enforcement strategy by helping agency field offices
around the United States expedite I-9 audits of businesses selected
for inspection by ICE.
The creation of the ECIC comes on the heels of ICE's
record-setting I-9 enforcement initiatives in Fiscal Year
("FY") 2010. According to Secretary Janet Napolitano,
"[o]ur approach has yielded historic results . . . issuing
more financial sanctions on employers who knowingly and repeatedly
violate immigration law than during the entire previous [Bush]
administration." Indeed, on January 26, 2011, in a
statement before the U.S. House of Representatives, Committee on
the Judiciary, Subcommittee on Immigration Policy and Enforcement,
Deputy Director Kumar Kibble reported that in FY 2010, ICE
initiated a record 2,746 worksite enforcement investigations, more
than doubling the 1,191 cases initiated in FY 2008. According to
Deputy Director Kibble, ICE criminally arrested 196 employers for
worksite-related violations, surpassing the previous high of 135 in
FY 2008 and issued a record 2,196 Notices of Inspection to
employers, surpassing the prior year's record of 1,444 and more
than quadrupling the 503 inspections in 2008. He also reported that
ICE issued 237 final orders – documents requiring
employers to cease violating the law and directing them to pay
fines – totaling $6,956,026.00, compared to the 18 issued
for $675,209.00 in FY 2008. The total of $6,956,026.00 last year
represents the most final orders issued since the creation of ICE
in 2003. In addition, worksite investigations resulted in a record
$36,611,320.00 in judicial fines, forfeitures, and
restitutions.
ICE's investigative efforts in FY 2010 also included
identifying, investigating and penalizing employers who engaged in
visa and/or labor certification fraud. Since the start of FY 2009,
ICE has initiated 623 cases involving the H and L nonimmigrant
employment-based visa categories and obtained 91 criminal arrests,
152 administrative arrests, 103 convictions and seized a total of
$13,845,276.00.
Locally, ICE audited 44 businesses in Tennessee in Fiscal Year
2010, 14 of which were located in Middle Tennessee. Of the 44
Tennessee audits, 11 have been completed. While none of the 11
audits resulted in civil penalties in FY 2010, ICE remains
committed to sanctioning employers financially and has indicated
that businesses in Tennessee can expect more fines to be issued in
the future as the auditing process improves.
At a recent ICE Worksite Enforcement Meeting with private sector
stakeholders, ICE indicated that when it comes to correcting
I-9 forms, the most important issue to the agency is whether the
employer's actions are reasonable. To assess whether an
employer acted reasonably, any corrections to Form I-9 must clearly
reflect contemporaneously what happened and when. For example, if
an employer makes a correction during an internal I-9 audit, the
correction should be carefully explained on the corrected I-9.
According to ICE, the agency views an employer's good faith
efforts to correct their I-9 forms differently when corrections are
made post-NOI (i.e. after a Notice of Inspection is served on a
business), rather than pre-NOI.
In developing a robust worksite compliance strategy, employers
should consider implementing the following best practices:
1. Review and evaluate your company's
verification compliance policy.
2. Conduct periodic self-audits of your company's
I-9 forms to monitor your company's compliance withfederal
employment verification requirements.
3. Complete Form I-9 for every employee (with limited
exceptions).
4. Provide training to employees in the field who are
responsible for completing I-9 forms.
5. Develop a company hot line to report violations of
the law and establishing protocols for follow-up on
calls from tip lines, complaint
lines, etc.
6. Appoint a compliance officer with ultimate
responsibility for employment verification compliance.
7. Develop a written policy regarding whether to
photocopy I-9 documents.
8. Establish a "tickler" system to provide
alerts for status/employment authorization expiration dates.
9. Implement a zero tolerance policy for individuals
who are not work authorized.
10. Develop increased awareness of identity fraud and
fraud detection techniques.
The establishment of the ECIC reflects ICE's continued
"get tough" approach with employers who do not comply
with employment eligibility verification laws. These days,
when ICE comes calling, employers should expect that government
investigations will likely result in civil penalties, as well as
possible criminal prosecutions of company executives, owners and
managers for harboring and/or knowingly hiring undocumented
workers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
