*This article is the first in a three-part series regarding government worksite audits and inspections and what employers can do to mitigate risk and liability to their businesses.*
Sending a clear message that there will be no abatement in the aggressive federal enforcement of U.S. immigration laws, Immigration and Customs Enforcement ("ICE") announced the creation of an Employment Compliance Inspection Center ("ECIC") in Crystal City, Virginia on January 21, 2011. This center will be home to 15 auditors who will support ICE's worksite enforcement strategy by helping agency field offices around the United States expedite I-9 audits of businesses selected for inspection by ICE.
The creation of the ECIC comes on the heels of ICE's record-setting I-9 enforcement initiatives in Fiscal Year ("FY") 2010. According to Secretary Janet Napolitano, "[o]ur approach has yielded historic results . . . issuing more financial sanctions on employers who knowingly and repeatedly violate immigration law than during the entire previous [Bush] administration." Indeed, on January 26, 2011, in a statement before the U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, Deputy Director Kumar Kibble reported that in FY 2010, ICE initiated a record 2,746 worksite enforcement investigations, more than doubling the 1,191 cases initiated in FY 2008. According to Deputy Director Kibble, ICE criminally arrested 196 employers for worksite-related violations, surpassing the previous high of 135 in FY 2008 and issued a record 2,196 Notices of Inspection to employers, surpassing the prior year's record of 1,444 and more than quadrupling the 503 inspections in 2008. He also reported that ICE issued 237 final orders – documents requiring employers to cease violating the law and directing them to pay fines – totaling $6,956,026.00, compared to the 18 issued for $675,209.00 in FY 2008. The total of $6,956,026.00 last year represents the most final orders issued since the creation of ICE in 2003. In addition, worksite investigations resulted in a record $36,611,320.00 in judicial fines, forfeitures, and restitutions.
ICE's investigative efforts in FY 2010 also included identifying, investigating and penalizing employers who engaged in visa and/or labor certification fraud. Since the start of FY 2009, ICE has initiated 623 cases involving the H and L nonimmigrant employment-based visa categories and obtained 91 criminal arrests, 152 administrative arrests, 103 convictions and seized a total of $13,845,276.00.
Locally, ICE audited 44 businesses in Tennessee in Fiscal Year 2010, 14 of which were located in Middle Tennessee. Of the 44 Tennessee audits, 11 have been completed. While none of the 11 audits resulted in civil penalties in FY 2010, ICE remains committed to sanctioning employers financially and has indicated that businesses in Tennessee can expect more fines to be issued in the future as the auditing process improves.
At a recent ICE Worksite Enforcement Meeting with private sector stakeholders, ICE indicated that when it comes to correcting I-9 forms, the most important issue to the agency is whether the employer's actions are reasonable. To assess whether an employer acted reasonably, any corrections to Form I-9 must clearly reflect contemporaneously what happened and when. For example, if an employer makes a correction during an internal I-9 audit, the correction should be carefully explained on the corrected I-9. According to ICE, the agency views an employer's good faith efforts to correct their I-9 forms differently when corrections are made post-NOI (i.e. after a Notice of Inspection is served on a business), rather than pre-NOI.
In developing a robust worksite compliance strategy, employers should consider implementing the following best practices:
- Review and evaluate your company's verification compliance policy.
- Conduct periodic self-audits of your company's I-9 forms to monitor your company's compliance with federal employment verification requirements.
- Complete Form I-9 for every employee (with limited exceptions).
- Provide training to employees in the field who are responsible for completing I-9 forms.
- Develop a company hot line to report violations of the law and establishing protocols for follow-up on calls from tip lines, complaint lines, etc.
- Appoint a compliance officer with ultimate responsibility for employment verification compliance.
- Develop a written policy regarding whether to photocopy I-9 documents.
- Establish a "tickler" system to provide alerts for status/employment authorization expiration dates.
- Implement a zero tolerance policy for individuals who are not work authorized.
- Develop increased awareness of identity fraud and fraud detection techniques.
The establishment of the ECIC reflects ICE's continued "get tough" approach with employers who do not comply with employment eligibility verification laws. These days, when ICE comes calling, employers should expect that government investigations will likely result in civil penalties, as well as possible criminal prosecutions of company executives, owners and managers for harboring and/or knowingly hiring undocumented workers.
For more information, please contact Vinh Duong, Marcus Crider or any member of Waller Lansden's Labor and Employment practice at 800-487-6380.