Employment: Immigration Enforcement Shifts Focus To Employers Via Ice I-9 Audits

08.01.09

On July 1, 2009, Immigrations and Customs Enforcement (ICE) notified more than 650 businesses nationwide that ICE will be auditing their records to determine whether the companies have complied with Federal immigration law. The 650 notices issued on July 1 are the highest number of notices ever issued in a single day and exceed the total amount of notices sent out in 2008, which totaled 503 for the entire year. The Obama administration is implementing increased employer enforcement as a cornerstone of its immigration policy. This is a shift from the Bush administration, under which work-site raids focused on workers, rather than employers.

Federal law requires employers review identification and work authorization documents and complete the I-9 form for every employee. During the audits, ICE may review a company’s hiring records, including I-9 records, any I-9 policies, training manuals, training schedules, lists of all current and terminated employees, wage reports for employees, Social Security No-Match Letters. Employers with a significant number of unauthorized workers may be subject to fines. Criminal charges can apply if ICE believes the business knowingly hired illegal immigrants or there is a “pattern of egregious violations.”

As a result of a recent audit of an apparel company in California, ICE determined that 1,600 of the companies' 10,000 employees may not have had work authorizations. The company may be subject to a fine exceeding $100,000. Future violations may result in criminal charges. The company states many of the issues may have resulted from typographical errors or honest mistakes.

Employers should ensure current I-9 practices comply with the law. Each employer should designate one person responsible for ensuring I-9 compliance. Each employer should have an I-9 policy in place that describes that company’s I-9 procedures.

To avoid possible discriminatory action, the I-9 policy should ensure consistent treatment for all employees and proper understanding on the limitations that apply to an employer’s requests for an employee’s documentation. For example, an employer is not required to keep copies of the documents reviewed to complete an I-9. However, if an employer chooses to do so, the copies must be retained for all employees. If an employer only keeps copies for some employees and not others, this may be considered discrimination. To avoid such inconsistencies, the I-9 policy should state whether the company will retain copies.

Annual self-audits are essential to ensure a company is following proper I-9 procedures. Those completing the I-9 forms should be trained on the contents of the I-9 policy, the I-9 Handbook, and common errors discovered during self-audits. Correctly setting up I-9 procedures now, which comply with the law, may save you problems down the road.

By Hilary L. Velandia, hvelandia@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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