What ICE’s Latest Round of 1,000 Audits Means to a Business

By Dawn Lurie

Mar. 25, 2011

U.S. Immigration and Customs Enforcement, the principal investigative arm of the Department of Homeland Security, is issuing 1,000 notices of inspection to businesses across the country.

The action demonstrates the Obama administration’s ongoing commitment to a work-site enforcement strategy that focuses on employer compliance and much higher administrative fines.

Much is potentially at stake here, and employers that did not receive a notice should take advantage of their good fortune and ensure that they are in compliance now. One or two additional rounds of audits are expected during this calendar year.

No single industry will be targeted above another. ICE has publicly confirmed that aside from continuing to focus on critical infrastructure sites, any business of any size may be audited.

The notices are not random, however. Companies are chosen based on tips and leads from the public or other government agencies.

Furthermore, the Obama administration has continued to make it clear that the days when immigration compliance could be ignored and considered the “cost of doing business” are long gone.

The actual cost of noncompliance involves fines ranging from $110 to $16,000 per violation, a loss of branding, potential federal contract debarment and a large sum of money spent on internal reviews and legal fees.

In essence, the government is working to ensure that employers, regardless of size, have a workforce consisting of employees authorized to work in the United States. The I-9 audit approach and focus on civil enforcement has been successful in raising general awareness and notifying companies of their administrative responsibilities.

The Obama administration’s criminal prosecution of businesses and individuals the Justice Department considers immigration lawbreakers is also chilling. Employers must realize that immigration compliance goes beyond having a legal workforce.

Even if the employer has no unauthorized workers in their employ, they still need to make sure that their hiring and documentation practices are in compliance. Given that costly violations can include errors in the way the I-9 form was filled out, less-than-perfect I-9 practices have become a significant and expensive liability.

The bottom line is that businesses must take proactive steps to ensure full compliance or face serious consequences. It bears noting that actions taken before a government-initiated audit or investigation generally help mitigate damages, reduce exposure and save the company both time and money in the long run.

Whether an employer received a notice, it would be well worth it to retain experience immigration compliance counsel in order to understand its responsibilities. And if the employer has received notification, it should not respond on its own.

The good news is that there are steps employers can begin working on with their attorney to promote a culture of compliance in their workplace. Consider the following best practices, and get started immediately:

• Establish a comprehensive immigration compliance policy.

• Conduct in-house audits of Form I-9 documents and company policies as well as E-Verify, if applicable. Carefully decide on how these audits will be conducted with phases, samplings and other dividers being considered.

• Establish written policies, protocols and training for employment verification. Remember having a “paper” policy that is not integrated with your actions is more harmful than helpful.

• Diligently authenticate the identity of job applicants to ensure that they are who they say they are.

• Consider the use of E-Verify and other best practices advocated by the government after consulting with your attorney.

• Establish protocols for addressing issues with differing Social Security numbers.

• Establish and maintain safeguards against the use of the I-9 process for unlawful discrimination. Ensure your team is well-versed in your policy.

• Create a protocol for immigration compliance related to contractors, subcontractors and vendors. Draft specific language for your contracts that ensure those you do business with have their own processes in place for compliance.

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