As employers brace themselves for the next wave of Form I-9 audits, it’s critical to plan a response strategy which is both thorough and efficient. Step 1: analyze a real-life I-9 subpoena and notice of inspection to ensure compliance on each point.
This subpoena and notice of inspection (courtesy of the American Immigration Lawyers Association) was issued by the ICE office in Seattle, Washington as part of the 1,000 I-9 audits sent last week. The subpoena commands the employer to personally appear before the ICE local office to give testimony and provide the requested documents. As is customary, the employer is given 3 business days. The subpoena below speaks for itself, but here are some interesting observations:
The investigators are requesting records of all current employees as well as any employees terminated in the last year (from Oct 2008)
Investigators will look to see if the employer has properly handled rehired employees
Independent contractors, temporary staff from an agency, and “on-call” individuals will be scrutinized as the employer must produce a roster and supporting documentation
Employers must produce Social Security no-match letters (technically known as “Employer Correction Requests”), although again, it is only going back 1 year
Employers must provide all immigration filings for foreign national employees requiring visa sponsorship
The NOI requests more than just I-9s: the employer must also provide employee roster, payroll reports, quarterly tax statements with the IRS, state unemployment insurance tax reports, etc.
Corporate information (articles of incorporation, business license, and annual report) must be furnished
Investigators will consider whether the employer participates in E-Verify
The employer must also provide copies of the organization’s I-9 procedures or policies, if available.
In reviewing these points, it’s important to consider the I-9 inspection process and newly released penalty guidance. Many technical I-9 violations can be corrected now, and developing a proper I-9 procedure (requested above) clearly demonstrates good faith. If you need assistance getting started, contact Tracker Corp for a free I-9 and E-Verify compliance kit.
Although the government is not releasing the names of employers that have been targeted in this latest I-9 investigative sweep, several online news sources have reported the raw numbers in various states based upon interviews with local ICE representatives. Here is a current breakdown by state:
According to one of the ICE representatives, “critical to infrastructure” employers included agricultural processors, large agricultural or food service employers, transportation companies, power plants and defense industry firms that have government contracts of at least $100,000.
Today, DHS Secretary Janet Napolitano announced a new “I E-Verify” campaign to promote the use of E-Verify and recognize the approximately 170,000 businesses which have already enrolled. The I E-Verify campaign will essentially consist of public service announcements, posters, window stickers, and other measures to make the public more aware of E-Verify. One such announcement is already posted on Youtube as shown below.
In addition to public relations, DHS also announced the opening of a new office in Buffalo, NY, with 135 specialists dedicated to resolving E-Verify inquiries. Enhancements to the system are also on the way, including a feature for employees to self-check their record with E-Verify before they apply for a job. Other compliance improvements will include:
Adding passport photos to the E-Verify photo matching tool
Verifying employer information against the Dun & Bradstreet database
Checking for duplicate employers at different locations
Monitoring employers who fail to meet the 3 day deadline or improperly use E-Verify to pre-screen employees.
The press release announcing “I E-Verify” can be seen here.
Today, the Department of Homeland Security (DHS) announced the issuance of 1,000 additional I-9 Audit notices to employers across the country, focusing in particular on those providing critical infrastructure and other key resources. This number is on top of the 654 I-9 audit notices issued earlier this year. Speaking at today’s workforce symposium in Washington, DC, Assistant Secretary John Morton (of ICE) reiterated the agency’s commitment towards creating a culture of voluntary compliance through aggressive investigations and outreach programs. Assistant Secretary Morton also provided recent statistics, showing the increased level of investigations and fines. The following table illustrates the dramatic increase in worksite enforcement this year:
Enforcement
Since April 30, 2009
All of FY 2008
Form I-9 Inspections
1,069
503
Total Fines Assessed
$15, 865,181 (142 notices)
$2,355,330 (32 notices)
Final Orders
$798,179 (45 orders)
$196,523
Cases Initiated
1,897
605
Debarred from federal contracts
45 businesses/47 individuals
0 businesses/1 individual
In addition, DHS released statistics from the 654 notices which were sent in July 2009. Of particular interest, the ICE agents identified roughly 14,000 suspect documents (16% of all viewed); assessed over $2 million in fines; and let 326 employers off with a warning.
The press release announcing these findings (and the new audits) is available here.
Today, DHS Secretary Janet Napolitano spoke at the Center for American Progress about the need for immigration reform while reinforcing the Obama Administration’s commitment to worksite enforcement and the expansion of E-Verify. Below is an excerpt from her prepared remarks concerning I-9 and E-Verify issues. Note the recent surge in E-Verify registration: approaching 2,000 employers per week.
Furthermore, we’ve transformed worksite enforcement to truly address the demand side of illegal immigration. We are auditing the books of thousands of employers suspected of relying on illegal labor to achieve an unfair advantage in the marketplace. As part of this effort, Immigration and Customs Enforcement audited more employers suspected of hiring illegal labor in a single day in July than had been audited in all of 2008. We’re also encouraging workplace compliance by expanding and improving the E-Verify system—an Internet-based system that allows participating employers to electronically verify the employment eligibility of new hires. More than 167,000 employers at 639,000 worksites use E-Verify. In the past month, the program has grown at the rate of nearly 2,000 employers per week.
Improved interior and worksite enforcement is a critical part of comprehensive immigration reform. We’ve demonstrated that when it comes to that issue, this Administration is committed to action.
Minnesota Public Radio reports that one of the largest immigration crackdowns under the Obama administration quietly took place in the Twin Cities as a result of an I-9 audit at a janitorial services company. According to sources quoted in the article, 1,200 janitors were fired from their jobs last month after failing to produce acceptable I-9 documents. Unlike the high-profile raids of the past, apparently none of the unauthorized workers were arrested or otherwise detained by ICE. No details are provided on any fines levied against the company.
An internal memorandum from the Department of Homeland Security (DHS) has been released, which highlights the agency’s new worksite enforcement directive against employers and emphasizes the importance of the Form I-9 Audit. The memo, which is stamped April 30, 2009, had been alluded to in a Worksite Enforcement Fact Sheet posted online as well as the infamous “Bold New I-9 Inspection Program” press release issued by ICE chief, John Morton in July when 652 notices were sent to employers nationwide.
Here’s a brief summary of the four-page memo, which is provided in its entirety below.
ICE will prioritize the criminal prosecution of employers who knowingly hire undocumented workers. This includes owners, corporate managers, supervisors and others in the management structure.
ICE should use all available investigative methods including use of confidential sources and cooperating witnesses, undercover agents, intercepts, and Form I-9 audits.
The most important administrative tool is the Notice of Inspection (NOI) and the resulting Form I-9 audit. It will be used in both criminal and administrative investigations.
Civil fines will be used as a penalty when the evidence does not support a criminal prosecution or as otherwise appropriate.
ICE should use debarment (which precludes companies who have knowingly hired undocumented workers from securing work on federal contracts) to maximize the deterrent effect.
ICE will initiate audits, searches, and other enforcement operations at critical infrastructure and national security sites.
All worksite investigations must provide 14-day notice to ICE headquarters in advance of developing or executing enforcement activity.
The owner of a southwest Missouri roofing company has pleaded guilty to hiring, contracting and subcontracting to hire undocumented workers while knowingly accepting falsified I-9 forms. According to the plea agreement, the owner admitted that he knew his subcontractor’s employees were not authorized to work, but did nothing to terminate them or sever his relationship with the subcontractor. In a separate but related case, the subcontractor pleaded guilty to harboring charges and admitted that he had gathered copies of fake ids and prepared falsified I-9 forms in order to avoid detection.
In a press release posted today, ICE reports that the owner also agreed to forfeit $185,363, which represents the amount of proceeds obtained as a result of the offense. The owner will also receive 5 years probation and must implement an employment-compliance plan.
Today, ICE announced that Shipley Do-Nut Flour and Supply Company, a houston-based doughnut and catering company, was ordered to pay a criminal fine of $250,000 and forfeit $1.334 million to ICE for harboring undocumented workers. The charges stemmed from a criminal investigation initiated by ICE in January 2008 which included interviews with former employees and a full audit of the company’s I-9 forms and SSA No-Match letters.
According to the press release, ICE agents administratively arrested 27 undocumented workers who lived in company-provided housing located at or near the warehouse. The agents also recovered 42 No-Match letters, which ICE claims placed the company “on notice” that the workers did not have valid Social Security numbers. The company subsequently plead guilty to the charges in September 2008.
John Morton, the newly appointed Assistant Secretary for ICE, recently spoke before the U.S. House of Representatives Committee on Homeland Security regarding the Fiscal Year 2010 Budget for ICE and operational priorities. In his speech, Mr. Morton emphasized that ICE is committed to worksite enforcement, and that he would continue to promote both criminal investigation of employers and the use of administrative tools such as Form I-9 audits and the imposition of “meaningful civil fines” as a deterrent. An April 2009 Fact sheet cited more than 5,100 administrative arrests in FY2008 for immigration violations, which represents a 30% increase over the previous year. ICE has also increased criminal arrests for owners, managers, supervisors, and HR employees who knowingly hire undocumented workers.
Mr. Morton also advocates E-Verify as a “valuable compliance tool” and promises to proactively partner with the private sector to train employers who want to avoid unwitting violations of the law. In a separate speech before an international employer group, Mr. Morton recognized that E-Verify’s 3% error rate could be improved, but insisted that it’s still a good working model and the best tool the government has at its disposal right now.
