ICE Launches New Initiative to Increase Audits of Businesses' Employment Records - Are You in Compliance?

Increased Enforcement Against Employers

As employers continue to await the United States Congress' response to the growing illegal immigration situation in this country, Immigration and Customs Enforcement (ICE) has announced a new initiative to increase audits of businesses' employment records to verify compliance with employment eligibility verification laws and regulations (Form I-9).

On July 1, 2009, ICE issued Notices of Inspections (NOIs) to 652 businesses nationwide – this is more notices than ICE sent to employers throughout all of 2008. According to ICE, these NOIs are being issued to businesses as a result of leads or other information that the employer may not be complying with employment verification laws (Form I-9) and/or employers who may be employing unauthorized or "illegal" workers. It is not clear at this time whether or not these NOIs involve employers with serious violations, but in view of this significant shift in the agency's priorities, all employers must take note. Moreover, the NOIs are scheduling employers for audit within mere days of the notice. As a result, employers have very limited time to review and prepare their records prior to the ICE audit and investigation.

What are the I-9 Employment Eligibility Verification Requirements?

The federal Immigration Reform and Control Act (IRCA) of 1986 requires all employers to complete Form I-9, Employment Eligibility Verification, for all employees hired after November 6, 1986 and for the purpose of verifying employees' identity and authorization to work in the United States. Employers who knowingly "hire, employ, recruit, or refer for a fee" an alien that is not authorized to work are subject to sanctions. IRCA also established special procedures to prohibit and prosecute employers for discrimination on the basis of national origin and race. Employers must maintain a delicate balance between unlawful employment and unlawful discrimination under IRCA and other employment laws.

What Should Employers be Doing Now?

Given ICE's continuous raids and new audit initiative against businesses, every employer should ensure immediate and full compliance with all I-9 requirements by conducting an internal audit of their I-9 records and ensure they have an effective and consistent I-9 compliance policy in place.

It is important to note that even seemingly minor clerical mistakes on the Form I‑9 and other paperwork violations could subject the employer to penalties and fines. Additionally, if there are substantive violations, properly completed I‑9 forms and a good I‑9 policy, generally, could help mitigate such penalties. As such, we strongly recommend seeking the assistance of outside counsel to conduct a "friendly" I-9 audit in preparation for a possible ICE audit and investigation.

In the meantime, here are some general compliance points to consider:

· How many employees are involved in conducting I‑9 compliance?

· Was the I‑9 completed timely?

· Do you properly store your I‑9s according to the retention requirements for current and terminated employees?

· How are the I‑9s stored?

· Is each I‑9 thoroughly and properly completed?

· Are you properly and timely complying with reverification requirements?

· Are you directing employees as to which documents to present in satisfaction of I‑9?

· Are you following prescribed procedures in correcting errors found within the I‑9?

For more information regarding I-9 compliance and/or to obtain assistance with completing a "friendly" I-9 audit, please contact Jenifer M. Brown or Tami A. Earnhart or another member of the immigration or labor and employment practice groups.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances