“ICE, ICE baby”… please don’t come knocking on my door!

In late April, the Obama Administration announced a refocused worksite enforcement strategy aimed at reducing the demand for illegal employment in the US and protecting employment opportunities for the nation’s lawful workforce. Unlike the Bush Administration’s worksite enforcement policy, which focused on large-scale raids designed to arrest and deport undocumented workers, the Obama Administration’s intention is to prioritize criminal and civil actions against employers that knowingly hire undocumented workers over actions against the illegal workers themselves. Little was said, however, about how the strategy would be implemented, but it is clear now that the Obama Administration means business.

On July 1, the Department of Homeland Security’s enforcement arm, Immigration and Customs Enforcement (ICE), launched a new initiative, investigating compliance with employers’ Form I-9 obligations, issuing an unprecedented 652 Notices of Inspection (NOIs) to businesses nationwide. The number of NOIs issued by ICE on this one day was more than the 503 total number of NOIs issued by ICE in all of Fiscal Year 2008. This action by the Obama Administration signifies that ICE will be inspecting employers’ hiring records to determine whether or not they are in compliance with US immigration law.

All employers are required to prepare and retain (for three years after the employee’s date of hire or one year after the date that the employee is discharged) the Form I-9, Employment Eligibility Verification, for each new employee they hire, regardless of that individual’s citizenship. The employer must examine the new hire’s identity and employment authorization document(s) to determine whether they reasonably appear on their face to be genuine and relate to the person presenting them. Once the employer has accepted the documents, the information is recorded on the Form I-9. Form I-9s can be retained in paper, microfilm, microfiche or electronically.

Employers have at least three days after receiving a NOI to provide the inspecting office with the requested Form I-9s for all employees employed during the period covered by the audit at the location where the office requests to see them. If it is more convenient, employers may waive the three-day notice. In addition, employers may also request an extension of time to produce the forms. The requesting office will likely also ask to review payroll or personnel records. Although no administrative subpoena or warrant is necessary to inspect Form I-9s, an employer can insist upon such a document before granting ICE access to other personal information. Note that a refusal or delay to the presentation of the Form I-9s for inspection is considered a violation of the Immigration Reform and Control Act’s (IRCA) retention requirements and may result in the imposition of civil money penalties. It is advised that employers obtain counsel prior to the NOI in order to prepare for the external audit. Further, employers should retrieve and reproduce only the documents specifically requested by the inspecting office, review and make corrections to the Form I-9s, where appropriate and abide by IRCA’s antidiscrimination obligations during the audit process.

Remember, an employer’s failure to complete or retain Form I-9s may lead to more serious charges, like knowingly hiring undocumented workers, resulting in significant civil and criminal penalties. In fact, on July 7, Krispy Kreme Doughnut Corporation reached a $40,000 fine settlement with ICE after a Form I-9 audit revealed that the company had employed dozens of undocumented workers at one of their doughnut factories in Cincinnati, Ohio. Los Angeles-based clothing manufacturer American Apparel, Inc received a notice from ICE that the agency has been unable to verify the employment eligibility of approximately 200 current American Apparel employees because of discrepancies in the employees’ I-9 Forms, according to the manufacturer in a July 1 press release. ICE also notified the company that, based upon its review, approximately 1,600 other current employees do not appear to be authorized to work in the United States. This represents approximately one-third of American Apparel’s workforce. The investigation is ongoing.

More information on these matters can be found in a recent white paper published by CCH.