By Robert Loughran, Partner
On July 24, U.S. Immigration and Customs Enforcement announced that Homeland Security Investigations had served notices of inspection on more than 5,200 businesses from January 2018 to the present as part of a nationwide operation to audit employer hiring records for compliance with employment eligibility verification requirements.
According to the ICE press release, HSI served 2,540 notices and made 32 arrests during the first phase of the operation from Jan. 29 through March 30. ICE then served 2,738 notices and made 61 arrests during the second phase of the operation from July 16 to July 20. These notices routinely request proof of compliance with the employment eligibility verification process in the form of completed Forms I-9 and copies of any supporting identity documents that the workforce has provided and the employer has retained. After notices and/or subpoenas are served, the employer ordinarily only has three days to assemble and submit the identity documents as well as listed corporate, tax, employment and income documentation.
ICE seeks ‘culture of compliance’
The administration is publicizing this exponential increase in the number of inspections and arrests as part of what ICE describes as an effort to create a “culture of compliance” among employers by focusing on criminal prosecution of employers who knowingly break the law and by using I-9 audits and civil fines to encourage compliance. ICE stated that worksite inspections are one of the most powerful tools the federal government uses to ensure employers properly verify the identity and work authorization of all new hires through the completion of the Form I-9 employment eligibility verification process.
In the release, the acting executive associate director for HSI warned, “Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records. All industries, regardless of size, location and type are expected to comply with the law.”
Employers can take steps now to prepare for the possible service of a notice of inspection. Appropriate actions may include:
- Organizing all Form I-9 records and ensuring they are easily accessible, whether stored in paper or electronic format
- Checking the employer’s payroll roster against the Form I-9 records to ensure a Form I-9 has been completed for every active employee
- Checking to ensure that a Form I-9 is on file for all former employees that were hired within the past three years
- Conducting a pro-active Form I-9 audit with the assistance of qualified immigration counsel to identify and correct any deficiencies
- Developing and communicating an action plan for receptionists and other front-line employees to follow should ICE arrive at the worksite and serve a notice of inspection
The impact of public perception
The requirement to check identity documents to verify employment eligibility has existed since 1986 across five presidential administrations. However, each presidential administration makes decisions on where and how to deploy resources. The last administration perceived that television images of children crying left at daycares because their parents had been detained was politically damaging with the voters that had elected it. Therefore, a conscious decision was made to transition the enforcement obligation to “desk audits” that were less confrontational. “Desk audits” addressed the termination of falsely documented employees through correspondence rather than arrests. After cross-checking the documents provided by employers against available databases, the previous administration gave notice to employers that identified those workers who may need to be terminated. Failure to heed these notices could convert an otherwise innocent employer into a knowing violator and lead to criminal prosecution. This enforcement method through correspondence resulted in workforce dislocation without confrontation and was largely imperceptible to the public.
With this most recent press release, the current administration is providing clear notice of a change in methods, and that it intends to strictly enforce laws that have existed for more than 30 years against workers who have presented false identity documentation, as well as against the companies that employ them.