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American Bar Association - Defending Liberty, Pursuing Justice

March 2008

Vol. 4, No. 2

Litigation

 

ICE Increases Enforcement Against Employers: Benefits of an Internal I-9 Audit

The U.S. Immigration and Customs Enforcement (ICE), the enforcement division of the U.S. Department of Homeland Security (DHS) on immigration cases, has recently increased interior immigration enforcement. These enhanced efforts include targeting employers of undocumented or unauthorized employees for audit/investigation. The enforcement mechanisms against employers include not only civil fines, but potentially criminal charges and federal asset forfeiture of the tools or instrumentalities of these crimes.

Recent Arrests Include Nationwide Operations

Some of the increased efforts have been reported by the news media, including a nationwide search of the various facilities of the country’s largest pallet company. That search extended to more than 26 states and, according to an ICE press release, resulted in criminal charges against seven current and former managers of the corporation for conspiring to transport, harbor, encourage, and induce undocumented individuals to reside in the United States for commercial advantage and private financial gain. From the description provided by ICE, the particular employer’s violations were pervasive. More than half of the 5,800 workers on the payroll had invalid Social Security numbers or had numbers with names that did not match the names registered with the Social Security Administration. More than 1,000 foreign nationals were apprehended.

DHS’s New Get-Tough Approach

ICE has proclaimed a new, tougher approach to employer violations. DHS Secretary Michael Chertoff proclaimed that DHS “has no patience for employers who tolerate or perpetuate a shadow economy. We intend to find employers who knowingly or recklessly hire unauthorized workers and we will use every authority within our power to shut down businesses that exploit an illegal workforce to turn a profit.”

Benefits of an I-9 Audit

To try to determine if there are worker documentation issues that an employer’s ordinary I-9 process did not uncover, an I-9 audit by immigration counsel is recommended.

In light of the fact that tougher enforcement is anticipated to be ongoing and the fact that potential penalties include back wages, civil money penalties, and possible debarment from all future approvals for at least one year, the cost for an on site I-9 audit is negligible.

The wisdom of engaging counsel to conduct a private I-9 audit becomes apparent when one considers these potential benefits:

  1. A private audit will reveal many correctable errors that could result in fines that would be quite costly if discovered in an ICE/Labor Audit.
  2. Correcting errors in advance of an ICE/Labor Audit not only minimizes liability by reducing the number of “problem” I-9s that could trigger fines, but also would be a mitigating factor and may even be a good faith defense.
  3. An I-9 audit can be done thoroughly and at a pace set by the employer, rather than by an investigator, who will provide short notice and an immediate date for disclosure of records. Therefore, it lessens the drain on company resources associated with the type of last-minute preparation normally required on receipt of an inspection notice, which may require production of all I-9s on three days’ notice.
  4. A private audit will identify common errors that might have been made by managers or others completing the I-9 forms and identify areas where additional training of managers and HR representatives as to IRCA’s verification and documentation requirements is needed.
  5. A private audit will identify systematic problems in the company’s existing IRCA compliance program if any exist (for example, to retain necessary records, failure to reverify when required, etc., which can be remedied, thus mitigating or eliminating penalties should an audit be required by the government).
  6. A private audit will catch errors early on, and permit corrections or amendments to the I-9s that cannot be made later—for example, after an employee is terminated.

If you have decentralized the company’s I-9 process or not reviewed it for more than a year, now is the time to consider a private audit in light of government enforcement initiatives.

Neil S. Dornbaum and Kathleen M. Peregoy are members of Dornbaum & Peregoy LLC Newark, New Jersey. Their practice is limited to immigration and naturalization with special emphasis on employment-based immigration.

© Copyright 2008, American Bar Association.