U.S. Immigration and Customs Enforcement (ICE) announced that Homeland Security Investigations (HSI) had served Notices of Inspection on more than 5,200 businesses from January 2018 to the present as part of a two-phase nationwide operation to audit employer hiring records for compliance with employment eligibility verification requirements. By comparison, HSI served a total of 1,360 Notices of Inspection during Fiscal Year 2017 in its entirety.

According to the ICE press release, HSI served 2,540 Notices of Inspection and made 32 arrests during the first phase of the operation from January 29, 2018 through March 30, 2018. ICE then served 2,738 Notices of Inspection and made 61 arrests during the second phase of the operation from July 16, 2018 to July 20, 2018.

This exponential increase in the number of inspections and arrests continues to confirm Foster LLP’s analysis regarding heightened enforcement activity and reflects efforts by ICE leadership to increase worksite enforcement efforts by four to five times.

ICE Seeking to Promote Culture of Compliance

The Notices of Inspection are part of what ICE described 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 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.

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.”

Steps to Prepare for Possible Inspection

Employers are required to complete Forms I-9 for all employees hired after November 6, 1986. Employers are also required to produce their organization’s Forms I-9 within three business days after receiving a Notice of Inspection. Non-compliance with Form I-9 requirements can result in substantial civil liability and employers who knowingly employ unauthorized workers can face potential criminal liability.

Employers are reminded to act now to prepare for the possible service of a Notice of Inspection. Appropriate actions may include:

1. Organizing all Form I-9 records and ensuring they are easily accessible, whether stored in paper or electronic format;
2. 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 hired after November 6, 1986;
3. Checking to ensure that a Form I-9 is on file for all former employees that were hired within the past three years;
4. Conducting a pro-active Form I-9 audit with the assistance of qualified immigration counsel to identify and correct any deficiencies; and
5. Developing and communicating an action plan to follow if ICE arrives at the worksite and serves a Notice of Inspection.

For more information on how to prepare your company for a possible inspection or to explore options for conducting a pro-active Form I-9 audit, please contact your Foster immigration attorney.