ICE Worksite Enforcement Strategy Memorandum

AILA recently obtained through a FOIA request the ICE Worksite Enforcement Strategy Memorandum from Marcy M. Forman, ICE Director, Office of Investigation.

The Memorandum makes crystal clear ICE enforcement includes an expanded definition of “employers” subject to investigation, prosecution and fines. “...“employer" refers to someone involved in the hiring or management of employees. This includes owners. CEOs, supervisors, managers, and other occupational titles.”

Below I have reproduced portions of the ICE Worksite Enforcement Strategy (WES) Memorandum

“The prospect of employment in the United States continues to be one of the leading causes of illegal immigration…ICE has a vital responsibility to engage in effective worksite enforcement to reduce the pull of illegal employment…enforcement efforts focused on the employer better target the root causes of illegal immigration…
ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment….

Criminal Prosecution of Employers
• The criminal prosecution of employers is a priority of ICE's worksite enforcement (WSE) program and interior enforcement strategy.
• ICE is committed to targeting employers, owners, corporate managers, supervisors, and others in the management structure of a company for criminal prosecution through the use of carefully planned criminal investigations.
• ICE offices should utilize the full range of reasonably available investigative methods and techniques, including but not limited to: use of confidential sources and cooperating witnesses, introduction of undercover agents, consensual and nonconsensual intercepts and Form 1-9 audits.
• ICE offices should consider the wide variety of criminal offenses that may be present in a worksite case. ICE offices should look for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct….

Administrative and Civil Tools
ICE offices should use administrative tools to advance criminal cases and, in the absence of criminal charges, to support the imposition of civil fines or other available penalties.

A. Form 1-9Audits
The most important administrative tool is the Notice of Inspection (NOI) and the resulting administrative Form 1-9 audit.
• The Form 1-9 audit process will be utilized in both criminal and administrative investigations to identify illegal workers, including criminal aliens employed at a business.
• Although auditors will assume primary responsibility for conducting Form 1-9 audits, ICE special agents and auditors must coordinate closely because this process will often serve as an important step in the criminal investigation and prosecution of employers….

B. Civil Fines
Civil fines, although not as key as criminal prosecution, are an important part of an effective worksite enforcement strategy….

Conclusion
ICE is committed to robust worksite enforcement….”

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits. 

Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

I-9 compliance (and E-verify for registered employers) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer liability extends to circumstantial evidence and “constructive knowledge”.
  It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.

"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services.  Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws. 

Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world.  Immigration law is a federal law practice not limited attorneys in a particular state.