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Who Got A Golden Ticket? ICE Issues 1000 Worksite Audit Notices Of Inspection

by Dawn Lurie and Kevin Lashus

[Editor's Note: today's blog is courtesy of Dawn Lurie and Kevin Lashus of Greenberg Traurig]

At a meeting of the District of Columbia Bar Association on February 15, 2011, Brett Dreyer, Chief of the Worksite Enforcement Unit of Homeland Security Investigations, U.S. Immigration and Customs Enforcement (ICE), verified that ICE continues to focus its investigations both on businesses that were brought to their attention by tips and leads and those that work in areas of national security and critical infrastructure. Mr. Dreyer would not comment on the possibility of a new round of audits, however, we now have confirmation that Notices of Inspection (NOIs) were served around the country beginning February 16, 2011. Indeed, ICE’s stepped up worksite enforcement strategy has turned away from workplace raids to focus instead on employer compliance and much higher administrative fines.

ICE acknowledged in a statement that “the inspections will touch on employers of all sizes and in every state in the nation — no one industry is being targeted nor is any one industry immune from scrutiny.” The agency declined to name specific businesses to be inspected, according to an article by the Associated Press.

Arguing that this strategy has elevated the recognition of employer responsibilities, ICE is continuing with a quiet launch of a robust plan to audit 1000 businesses nationwide that were carefully selected by local Special Agent in Charge (SAC) offices. Businesses both large and small should consider themselves at risk for this initiative, as ICE has no plans to discriminate. Mr. Dreyer held a captive audience at the DC Bar and did not discuss any plans for the NOIs, but confirmed that “the agency continues to be interested in egregious employers as they tend to break other laws in addition to immigration…including paying employees under the table, avoiding taxes and ignoring employee protections.” Bear in mind that you do not need to run very far afoul of the law to feel the burning heat of ICE. The Obama administration has resurrected the use of civil fines for paperwork and substantive violations, making shoddy Form I-9 completions a very expensive problem.

The NOIs instruct companies that they have the standard three (3) days to present the Forms I-9 of their employees for inspection. ICE will be reviewing the companies’ hiring records to determine whether or not they are complying with the Immigration Reform and Control Act of 1986 (IRCA), as well as other immigration-related laws. ICE continues to consider these inspections an important tool in the government’s enforcement toolbox. This initiative reflects a renewed department-wide focus in targeting employers involved in the hiring of unauthorized workers and related criminal activity.

According to press reports and from a patchwork of information collected from ICE agents and auditors and historical procedures, the Homeland Security Investigation unit is coordinating this initiative and the audits are expected to be completed in the next two to three months. Purportedly, each SAC office was provided with a number of companies to select and, unlike in the last round where size mattered, DHS Headquarters urged the local offices to select companies without regard to size and promised additional resources and personnel where necessary. Certainly the new Employment Compliance Inspection Center will be an advantageous resource for the local forensic auditors, as it is expected to provide not only manpower but also guidance on audit protocols and procedures. Last month, Assistant Secretary for ICE John Morton said the new center would have the “express purpose” of providing support to regional immigration offices conducting large audits. “We wouldn’t be limited by the size of a company,” Morton also reminded employers.

The Particulars

  • The staffing levels and regional priorities determine the number of audits. Historically, the larger SACs such as Los Angeles, St. Paul and Chicago have a larger number of audits, whereas SACs in Baltimore and Honolulu have less. This latest round of 1000 should prove to be similar in the distribution of audits.
  • Auditors may request the I-9s of current workers only or of current and terminated workers within the requisite time frame; note, however, that the auditor can expand the scope as necessary.
  • Audits can cover the entire workforce or a random sampling. It is expected that samplings will be increased where there is a concern over the quality of the I-9s or where further investigation of the workforce is warranted.
  • It is expected that the Form I-9 audit center will support some of these audits, as noted above.
  • In an effort to combat the increasing instances of identity theft, record checks will be conducted on the identities of all current employees to determine if there is a possibility of unauthorized workers in the workforce. In the past, record checks have included commercial databases and Federal Trade Commission reports.
  • While the local SAC offices have been directed to select targets whose headquarters lie within their jurisdiction and to ensure that companies with open investigations are not targeted, it is still expected that some of these audits will cross state lines.
  • The audit center will be asked to review I-9s when the investigation deems that further review outside the local office’s area is required.

What to do if you receive a Notice of Inspection (NOI)

As we discussed in our previous alerts Is That ICE Knocking At Your Door? and ICE Casts the Last Chill of the Fiscal Year: A New Round of National Audits, receipt of a NOI should be taken very seriously without regard to the size of your company. If you receive one, it is critical that you act immediately and secure a team of experienced compliance experts to guide you through the ICE inspection process. We recommend taking the following steps immediately upon receiving an NOI:

  • Notify your management and executive teams immediately
    • I-9 government investigations should be handled centrally
      • Every minute counts as the law provides just three (3) business days to collect the Forms I-9 (and photocopies of supporting documents) and turn them over to ICE
      • Remember extensions may be granted in certain circumstances
  • Retain experienced immigration counsel immediately
    • Inquire as to the specific background the attorney has in defending companies in ICE investigations
    • Consider the capabilities and platform of the firm, including whether expertise in other areas such as litigation, white collar defense, government contract law, etc., is available
    • Request references
  • Gather I-9s and supporting documentation
    • Compare active and terminated employee lists with payroll records
      • Review and identify any active employees who do not have an I-9 on file
    • Take stock of the physical Form I-9s
      • Alphabetize original I-9s and copies of supporting documents
      • Review to identify issues of concern
      • Make corrections, where appropriate, under the supervision of experienced immigration counsel;
        • Remember: Corrections can be made to Form I-9s but depending on the nature of the error, an employer should be the party to make some I-9 corrections, while the employee must make other corrections (Section 1);
        • In some circumstances, companies may create more liability if erroneous changes are made without experienced guidance
      • Abide by all anti-discrimination provisions and treat employees consistently
        • ensure that existing employees are not arbitrarily required to provide new or updated I-9 information or document copies
      • Prior submitting to forms to ICE:
        • Make copies for the company to reference during the subsequent ICE investigation that will follow the NOI
      • Confirm the “chain of custody” for the company’s documents by having the ICE agent acknowledge, in writing, the exact number of original I-9s that have been relinquished; and
  • Consider proactive compliance planning, where appropriate
    • Assess liability at your other locations, if applicable
    • Develop or improve a current compliance plan
    • Provide regular and ongoing training to those responsible for I-9 completion
      • Include anti discrimination and fraud document seminars
  • Don’t be afraid of the cost
    • Small companies should not have to invest a lot of money to understand their responsibilities.
    • Think about the cost of non-compliance (fines ranging from $110 to $16,000 per violation).

We expect additional worksite initiatives to continue throughout 2011 and urge employers to contact their Congressional representatives to request that enforcement be coupled with a dialogue for comprehensive immigration reform. In the interim, diligent employers must tighten their compliance efforts, and those who have not yet instituted compliance initiatives must focus efforts on a comprehensive review of their records, policies and protocols.

Originally published by LawLogix Group INC. Reprinted by permission.

About The Author

Dawn M. Lurie advises corporations on a variety of compliance-related issues, particularly I-9 employment verification matters and the minimization of exposure and liabilities. Dawn performs I-9, H-1B and H-2B compliance inspections during routine internal reviews, while performing due diligence (in the context of a merger, acquisition or sale) or while defending a company against a government investigation. In fact, Dawn has defended a number of businesses in high profile, high stakes government investigations involving both criminal and civil liability. She is considered a leading expert on monitoring and compliance issues concerning the government's E-Verify program and also has experience in Office of Special Counsel immigration-related matters and is often brought in to serve as co-counsel for strategic planning purposes in these types of matters. Dawn publishes and frequently lectures on I-9 issues including penalties for failure to act in accordance with government regulations, anti-discrimination laws and employers' responsibilities upon receiving social security "no-match" letters.

Kevin Lashus focuses his practice on corporate employment verification compliance and inbound business immigration. Kevin has experience in providing uniquely tailored advice to assist clients in developing comprehensive employment authorization and immigration-related compliance systems--including full-scale or localized E-Verify implementation protocols. Given his public-sector background and court-room experience, Kevin is able to prepare clients to minimize exposure during even the most complex regulatory, administrative, and civil litigation.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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