Employers Targeted for I-9 Violations and Employment of Unauthorized Workers

Department of Homeland Security (DHS) and its agency Immigratoins and Customs Enforcement (ICE) now target employers for I-9 violations and empoyment of unauthorized workers.

Worksite Enforcement Historical Transition
U.S. Immigration and Customs Enforcement (ICE) was established in 2003 as a sub-agency of the newly formed U.S. Department of Homeland Security (DHS). ICE took over responsibility for enforcing immigration law from the disbanded Immigration and Naturalization Service (INS), while U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) assumed responsibility for other INS functions.

Through its first two years, ICE limited its worksite enforcement efforts mostly to national security or critical infrastructure worksites. In 2006, the agency dramatically shifted its efforts to other workplaces, particularly those long associated with employing large numbers of illegal aliens. ICE’s highly orchestrated raids drew nationwide media attention— exactly what ICE intended. In those raids, ICE arrested thousands of workers and charged hundreds with identity theft or the use of fraudulent documents.

In 2007, ICE increased worksite enforcement activities, generally investigations of several months to years. National; media attention decreased as the number of worksite enforcement actions increased.

In 2008 and continuing into 2009, ICE has made a major shift in strategy and is now targeting employers. ICE now has teeth. ICE no longer has prosecuted a surprisingly high number of company owners, managers, human resources personnel and others in federal court, imposed heavy fines, seized property and bank accounts, and even sent people to prison for immigration-related charges.

Unfortunately, much of the business community fails to make I-9 practices and employment eligibility verification a priority concern. Employers must recognize that ICE has steered away from high-profile, multi-site raids, and now targets a substantial number of small and medium-sized employers, such as restaurants, construction companies and manufacturing plants.

An ICE investigation often involves significant cooperate among several state and federal agencies, including the Social Security Administration, state wage and labor investigators, postal service investigators, the U.S. Department of Labor, FBI and others. In some cases, state and local law enforcement agencies, sometimes— but not always— trained by ICE, have taken the lead in investigating alleged violations. This trend is almost certain to grow in the next few years, as many states follow the lead of Arizona, Colorado and others, enacting immigration laws and policies of their own.

ICE has also enlarged its geographic footprint into parts of the country that had seen little worksite enforcement activity in the past 20 years; as it has reached deeper into companies in prosecuting not only owners, but also managers, human resources personnel, a union steward and others who help illegal aliens get work.

ICE now targets the assets, cash and profit tied to the employment of illegal workers; and imposes severe penalties for employing a small number of people. Executives and individuals working in the company are sometimes going to prison.

ICE and prosecutors are resurrecting long-unused laws to charge individuals with crimes associated with illegal employment—the most significant development in immigration enforcement since the passage of the Immigration Reform and Control Act of 1986 (IRCA), when employer sanctions and the I-9 form first came into effect.

ICE now routinely works with undercover informants and undercover agents posing as workers.
ICE Dramatically Expands I-9 Audits in 2009.

New DHS/ICE Program Targeting Employers' I-9 Violations Announced on July 1, 2009
April 30, 2009, DHS Secretary Napolitano issued guidance outlining ICE’s new worksite enforcement focus on the criminal prosecution of employers who knowingly, including employer “constructive knowledge”, hire illegal workers in order to target the root cause of illegal immigration. DHS emphasized ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

July 1, 2009 ICE and DHS announced a nationwide initiative to audit employers’ Form I-9 employment eligibility verification records. Within days ICE followed by issuing Notices of Inspection (NOIs) to 652 employers across the country, making a major statement by ICE of its intentions to pursue worksite enforcement actions targeting employers. (In comparison, ICE only 503 Notices of Inspection in all of fiscal year 2008.)

ICE clearly indicated that targeting certain employers for their I-9 practices is part of a comprehensive strategy, indicating a push by the Obama administration to hold employers accountable for their hiring practices and to ensure a legal workforce using the government's investigative authority under the I-9 rules.

Targeting employers for I-9 violations is an extension of the strategy ICE began in 2008.

ICE New Enforcement Strategy Targets Employers' I-9s for Audits and Ciminal Enforcement:

• "Just a small fine or a slap on the wrist is not a deterrent...we see more robust criminal cases...the prospect of 10 years in prison carries much sharper teeth than just a small fine....We want to send the message that your cost of business just went up because you risk your livelihood, your corporate reputation and your personal freedom.""....individuals who have profited from hiring illegal aliens....we're going after their houses, their Mercedes and any money that they have, as well."
  -Julie Myers, Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement (Previous Director of ICE)
  
• "ICE is committed to establishing a meaningful I-9 inspection programto promote compliance with the law...a nationwide effort.. targeting people who employ....There are millions of employers in the UnitedStates."
  -John Morton, Immigration, New Department of Homeland Security Assistant Secretary for ICE

These warnings, recent raids, arrests and criminal indictments and prosecutions of employers for worksite violations across the U.S. by ICE clearly establish that employers are the frontline of the government’s efforts to stop illegal immigration. ICE is no longer merely using civil or administrative fines to punish employers after an I-9 investigation or audit. Employers who are violators can now find themselves facing criminal racketeering charges under RICO, potential jail time for harboring or smuggling illegal aliens, employee lawsuits for back pay, and personal fines and criminal charges against key personnel.

Department of Labor (DOL) Payroll Inspections Can Involve Form I-9 Review
I-9 audits do not just come from ICE. Directed and random audits arise from the DOL. Two offices within the Department of Labor (DOL) have the authority to conduct regular audits of an employer’s Form I-9s without probable cause to believe that any violations have taken place.

The Department of Labor investigates employment compliance through the Wage and Hour Division and the Office of Federal Contract Compliance Program. DOL authorization to audit employers for wage and hour matters and for H-1B and PERM public inspection files. A DOL or State Wage and Hour Division audit is reported to DHS/USCIS, and clearly can lead to I-9 audits and inspections.

Department of Labor has more than 1,500 inspectors and recently announced it will spend $30 million to hire 288 additional frontline inspectors to step up enforcement against employers for wage and hour violations.