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Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) were out in force during the week of July 16 delivering Notice of Inspection (NOI)/audit notices. Incredibly, HSI served 2,738 NOIs and made 32 arrests in a one-week period.  This is a massive operation and more NOIs than usually are delivered in a year’s time.

ICE’s Delivery of Notices of Inspection

ICE announced I-9 audit notices have been served to more than 5,200 businesses around the United States since January 2018. During the first phase of the operation, January 29 to March 30, 2018, HSI served 2,540 NOIs and made 61 arrests. Thus, at the present rate, ICE-HSI will reach over 8,500 NOIs for the 2018 calendar year. This is over 5,000 audits more than the highest previous amount of about 3,100 in 2013.

HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Derek N. Benner, Acting Executive Associate Director for HSI. HSI’s worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law.

Statistical Evidence

Failure to follow the Immigration Reform and Control Act can result in criminal and civil penalties. In FY17, businesses were ordered to pay$7.8 million in civil fines and $97.6 million in judicial forfeitures, fines and restitution with Asplundh Tree Experts assessed $95 million. This is the largest payment ever levied in an immigration case.

In FY 2018 to date, HSI opened 6,093 worksite investigations (I-9 audits) and made 675 criminal and 984 administrative worksite-related arrests, respectively. In fiscal year 2017, HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

How to Prepare for ICE I-9 Audit

Will your company be the next target? One of the best ways to prepare for an I-9 inspection by ICE is to hire an immigration attorney, who is experienced in worksite enforcement and immigration compliance issues. Even if you currently have an immigration attorney for employment-based visas, there is a good chance that he or she does not handle worksite enforcement, such as ICE inspections. Therefore, if you have an immigration attorney, reach out to him or her and inquire as to whether they are experienced in worksite enforcement matters. If so, great but if not, ask him or her to refer to an experienced immigration compliance/worksite enforcement attorney. You don’t want to wait to do this after ICE shows up at your facility.

The next step is for your immigration compliance attorney to conduct or supervise an internal I-9 audit. Through this audit, numerous errors will be found, most of which can be corrected so that if ICE inspects your I-9 forms, the errors will not be considered substantive errors, for which you can be penalized for. And don’t kid yourself, your I-9 forms have lots of errors.

Also, don’t be fooled by the fact that all your employees are U.S. citizens. You can still have substantive and technical I-9 errors. Another common comment from employers is “I’m in great shape as we use E-Verify.” Although E-Verify is excellent in establishing who is authorized to work, it cannot locate substantive or technical errors on the I-9 forms.

If an ICE I-9 audit occurs, getting an attorney involved as soon as a NOI is delivered can help an employer in several ways. An attorney may help the company negotiate a few days’ extension in responding to the subpoena.  And/or the attorney may be able to get a reduction in the list of requested documents. Most importantly, an attorney can help the employer prepare to respond in a methodical and thoughtful way.

Being prepared for a NOI/subpoena requires a company to have proper procedures in place upon hiring. The best way to have these procedures in place is with a written Immigration Compliance Policy. Under such a policy, every employee responsible for completing I-9 records on behalf of the company should be trained to do so. To many people, it is hard to tell the difference between a green card and a work authorization document issued to a recipient of DACA or TPS. Yet, one represents permanent work authorization that should never be reverified, and the other requires the employer to reverify the I-9 form upon the document’s expiration. 

If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.

Bruce Buchanan is a Partner at Sebelist Buchanan PLLC.  Mr. Buchanan is admitted to practice in Tennessee, Georgia, Florida, and Arkansas, and before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuit.