June 2018 - ICE Planning Surge of I-9 Audits This Summer
Immigration and Customs Enforcement (ICE) is planning a nationwide increase of Form I-9 audits this summer.
Derek Benner, acting executive associate director for ICE's Homeland Security Investigations (HSI) told The Associated Press that in addition to the plans for this summer, the agency will continue to focus on criminal cases against employers and deporting employees who are in the country illegally.
ICE has already opened more worksite investigations seven months into fiscal year (FY) 2018 than the agency completed in all of FY 2017. The federal fiscal year runs from Oct. 1 to Sept. 30. Enforcement investigations in FY 2018 have doubled last year's total, and arrests related to worksite enforcement have nearly quadrupled.
Since October 2017, HSI has opened 3,510 worksite investigations, initiated 2,282 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. That's up from 1,716 investigations, 1,360 I-9 audits, 139 criminal arrests and 172 administrative arrests the previous fiscal year.
If anyone was wondering if the Trump administration was more bark than bite, these numbers indicate a significant increase in enforcement action, noted Muzaffar Chishti, an attorney and director of the Migration Policy Institute's office at New York University School of Law. "What is not clear is whether any employers are included in the arrests," he said. "Arrests—both criminal and civil—are almost always workers. For example, no one from management was charged in the high-profile Tennessee raid in April. That seems to be an imbalance."
[SHRM and CFGI eLearning: Employment Eligibility: I-9 and E-Verify]
The ICE Toolkit
ICE said it uses a three-pronged approach to worksite enforcement:
- Compliance, via Form I-9 audits, civil fines and debarment from federal contracts.
- Enforcement, through the criminal arrests of employers and administrative arrests of unauthorized workers.
- Outreach, by participating in the ICE Mutual Agreement between Government and Employers program, in which ICE certifies organizations for complying with the law. As part of the program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system.
Chishti believes pushing employers to enroll in E-Verify may be the aim of ICE's more aggressive enforcement actions. "That strategy may work, but it only works for people who are on payroll," he said.
E-Verify doesn't enforce compliance for people paid as independent contractors, outsourced workers or those paid off the books, he said, adding that there's a tendency for employers to explore these alternative hiring methods in response to increased enforcement.
Be Prepared for a New Normal
Soon, ICE intends to conduct up to 15,000 Form I-9 audits per year, to be completed by electronically scanning documents in a not-yet-created national inspection center, Benner said.
"Investigations most often start with a notice of inspection alerting employers that ICE is going to audit their employment records for compliance with existing law," said Michael H. Neifach, an attorney in the Washington, D.C., region office of Jackson Lewis. Enforcement actions can begin from a law enforcement tip or from an investigation into another type of violation, such as labor standards violations, and could result in civil penalties and/or criminal charges for employers.
ICE recently changed the way it calculates civil penalties to increase the fines imposed for I-9 violations. In FY 2017, employers were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines.
"Unauthorized employees who are not legally in the U.S. may be detained and, ultimately, deported," Neifach said. "Given the government's focus on worksite inspections, preparing for possible inspections by auditing your employment verification processes and records is an essential precaution."