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Employers Take Note: Homeland Security is Stepping Up I-9 Audits


David-Fullmer-6The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) unit announced on July 1, 2009 that six hundred fifty-two (652) employers throughout the country are receiving I-9 Notice of Inspections (NOIs).   ICE is the federal agency responsible for investigating employers for immigration worksite violations and the NOIs require employers to provide copies to ICE of the Form I-9s and supporting documents of all employees by a specified date.    ICE declined to identify the companies receiving these notices “due to the ongoing, law enforcement sensitive nature of these audits,” but did indicate that these employers were selected for inspection as a result of “leads and information obtained through other investigative means.”

In announcing this initiative, John Morton, Department of Homeland Security Assistant Secretary for ICE, emphasized the current administration’s commitment to cracking down on employers who knowingly employ illegal workers and stated that the audits were “a first step in ICE’s long term strategy to address and deter illegal employment.”

This campaign signifies a change in the approach of ICE following the Obama Administration’s review of the nation’s immigration worksite enforcement strategy. Over the past several years, ICE has conducted several highly publicized raids, but has not been conducting routine I-9 audits. In all of FY2008, ICE issued only 503 similar notices. In the past several years under the Bush Administration’s policies, ICE has come under criticism by many based on its focus on the arrest and punishment of workers in illegal status only. Arguments have been made by many that any successful solution to the illegal immigrant issue must include sanctions and consequences for the employers as well.   In April of this year, under the guidance of the new administration, ICE implemented its new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. ICE is now focusing its resources on the auditing and investigation of employers suspected of knowingly hiring illegal workers, and has emphasized its commitment to hold employers accountable for their hiring practices by pursuing both civil fines and criminal prosecutions of employers who are not in compliance. In stating that Inspections are one of the most powerful tools that the federal government has to enforce employment and immigration laws, ICE has put all employers on notice that they need to make certain that their I-9 documentation and practices are in compliance. Any employer that wants to protect their business in the event of an ICE audit needs to take the necessary steps now to ensure that their I-9 documentation is being completed correctly and in a timely manner.

In order to assist employers in their efforts to achieve I-9 compliance, ICE has developed and published a list of ICE Best Hiring Practices with   suggested steps that employers should take in forming and implementing their Form I-9 completion. These suggestions are part of a voluntary program run by ICE referred to as IMAGE, ICE Mutual Agreement between Government and Employers which was implemented in 2007. Even if employers do not actually sign up for the IMAGE program, employer’s wishing to be prepared for any potential audit should be familiar with and consider implementing part or all of ICE Best Hiring Practices as is appropriate for their given situation.

The list includes:

  • Use the E-Verify employment eligibility verification system for all hiring. E-verify is a free and voluntary program that allows participating employers to electronically verify the employment eligibility of their newly hired employees.;
  • Establish an internal training program, with annual updates, on how to manage completion of Form I-9, retention and updating of Form I-9, how to detect fraudulent use of documents in the I-9 processes, and how to use E-verify;
  • Ensure that only trained I-9 administrators complete Forms I-9 and provide for a secondary review of Forms I-9;
  • Arrange for annual I-9 audits by an external auditing agency or a trained employee not otherwise involved in the I-9 process;
  • Establish a tip line for employees to report activity relating to unauthorized workers and establish a protocol for responding to such employee tips;
  • Establish policies to avoid the use of verification information for unlawful discrimination; and
  • Establish a protocol for assessing the adherence to “best practices” by contractors and subcontractors.

Under the new policies of ICE, the one thing that is certain is that ICE intends to continue with its increased audit activity. It is clear that more Employers will find themselves subject to I-9 audits. Employers that are vigilant about I-9 compliance are in a much better position during such an audit and will be able to avoid civil fines and potential criminal prosecution.

Disclaimer: Nothing on these pages should be taken as legal advice for any individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, please contact one of our attorneys.


All content is copyrighted by IVENER & FULLMER LLP. All rights reserved. All services relating to immigration and naturalization provided by Ivener & Fullmer LLP are provided by active members of the State Bar of California or by a person under the supervision of active members of the State Bar of California.


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