Immigration and Customs Enforcement ("ICE") continues to make headlines both in major newspapers and on television for its aggressive enforcement of U.S. immigration laws. ICE was created in March 2003 and is the largest investigative branch of the Department of Homeland Security ("DHS"). It was created after 9/11 by combining the law enforcement functions of the former Immigration and Naturalization Service ("INS") and the U.S. Customs Service to more effectively enforce immigration and customs laws and to protect the United States against terrorist attacks.
ICE's aggressive enforcement means that it is more vital today than ever that all employers ensure they are complying with the Immigration Control & Reform Act of 1986, as amended ("IRCA"), which penalizes employers for employing aliens that are not authorized to work in the United States. IRCA mandates that employers verify the employment eligibility of all new employees through the Form I-9 process.
Increased Worksite Enforcement
Worksite enforcement has become a priority in the Obama Administration. Most recently, on November 19, 2009 ICE Assistant Secretary John Morton announced that the agency had issued Notices of Inspection ("NOIs") to 1,000 employers throughout the United States. The NOIs alert business owners that ICE will audit their hiring records to ensure compliance with employment eligibility verification laws. According to Assistant Secretary Morton, "We are increasing criminal and civil enforcement of immigration-related employment laws, and imposing smart, tough employer sanctions to even the playing field for employers that play by the rules."
Although the names of the businesses were not released, ICE said that it selected them as a result of investigative leads and intelligence and because the companies are connected to public safety and national security. The audits will involve an in-depth review of all Form I-9 documents. All U.S. employers must complete a Form I-9 document within three-days of hiring all workers. The form requires employers to review and record each worker's identity and work eligibility documents. The employer is expected to review the documents and determine, if they appear genuine and specific to the worker. Although the employer is not expected to be a document expert, it is expected to use a "reasonable person" standard in reviewing them to spot potential fraud.
Earlier, in July 2009, ICE issued 654 NOIs to businesses nationwide suspected of using illegal workers. As a result of these audits, ICE released the following statistics on its website (www.ice.gov):
ICE agents reviewed more than 85,000 Form I-9s, identifying 14,000 suspect documents or approximately 20% of all documents reviewed.
To date 61 Notices of Intent to Fine ("NIF") have been issued with $2,310,255 in fines, an additional 267 cases are pending and being considered for NIFs; and 326 cases were closed after ICE found them in compliance with employment laws or after they were served with a Warning Notice.
It is clear that today ICE considers effective worksite enforcement an important part of its role in promoting homeland security. As ICE Assistant Secretary Morton stated on November 19, 2009, "We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules." This new aggressive enforcement using criminal sanctions, fines and imprisonment, means that all employers must comply with the IRCA laws and regulations and ensure that all workers are authorized to work in the United States.
Employer Protections
In these turbulent times, at a minimum, all employers should have documented I-9 compliance policies and procedures. In addition, I-9 training, voluntary audits, I-9 "experts" within the company and I-9 compliance programs should be adopted to establish a good faith attempt of employers to comply with IRCA. Another option is to join ICE's Mutual Agreement Between Government and Employers ("IMAGE") program. This is a voluntary program designed to help employers comply with the law. As part of the program, ICE and U.S. Citizenship and Immigration Services ("USCIS") provide the employer with education and training on proper hiring procedures, fraudulent document detection, use of the Basic Pilot Employment Verification program and antidiscrimination procedures. To join IMAGE and employer must submit to a voluntary I-9 audit by ICE. After enrolment, the employer must implement the following required Best Hiring Practices:
- Use the Basic Pilot Employment Verification Program for all hiring;
- Establish an internal training program, with annual updates, on how to manage completion of Form I-9 (Employee Eligibility Verification Form), how to detect fraudulent use of documents in the I-9 process, and how to use the Basic Pilot Employment Verification Program;
- Permit the I-9 and Basic Pilot Program process to be conducted only by individuals who have received training – and include a secondary review as part of each employee's verification to minimize the potential for a single individual to subvert the process;
- Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 and electronic verification process;
- Establish a self-reporting procedure for reporting to ICE any violations or discovered deficiencies;
- Establish a protocol for responding to no-match letters received from the SSA;
- Establish a Tip Line for employees to report activity relating to the employment of unauthorized aliens, and a protocol for responding to employee tips;
- Establish and maintain safeguards against use of the verification process for unlawful discrimination;
- Establish a protocol for assessing the adherence to the "Best Practices" guidelines by the company's contractors/subcontractors; and
- Submit an annual report to ICE to track results and assess the effect of participation in the IMAGE program. Companies that comply with the program are "IMAGE certified." ICE hopes that this distinction will be an industry standard. Because IMAGE is still fairly new it is difficult to judge its effectiveness. However, the requirement of an I-9 audit and strict adherence to the Best Practices may hinder the growth of the program.
Conclusion
Many of the worksite investigations to date have involved egregious violations of criminal statutes by employers and widespread abuses. By uncovering such violations, ICE is sending a strong deterrent message to all employers that knowingly employ illegal aliens. These worksite enforcement cases often involve additional violations such as alien smuggling, alien harboring, document fraud, money laundering, fraud or worker exploitation. However, ICE is growing, increasing its budgets and manpower, and its number of investigations so all employers must be vigilant in their employment policies.
One day, when you get that knock on the door or letter in the mail from ICE, "Be nice!" Then call us.
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