United States: Preparing For An Increase In I-9 Worksite Enforcement

Last Updated: November 17 2017
Article by Leigh N. Ganchan

After reviewing data related to time spent by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) unit on worksite enforcement, Acting Immigration and Customs Enforcement Director Thomas Homan issued a directive "to increase that [level of enforcement] by four to five times." A review of Homeland Security Investigations (HSI statistics from the prior administration reveals that the number of employer audits reached a peak in 2013 with 3,127 nationwide, but by 2016, audits had dipped to 1,279 audits (down 59 percent). The ICE directive comes just after an announcement of the largest fine on the I-9 enforcement record, as well as the White House release of President Trump's interior enforcement principles which include making participation in the now-voluntary E-Verify program mandatory. The distinct change in policy and the imminent exponential increase in employer audits have put I-9 compliance personnel on notice. Knowing some basics about the development of the I-9 related enforcement regime can help stakeholders gauge what to expect from the current administration that has vowed to "do it a little differently than we've done it."

From Basic Administrative Procedure to Federal Felony Cases

In the initial days of I-9 enforcement, employers charged with violating prohibitions on unauthorized employment learned that faulty I-9 records could result in a prolonged administrative fines process that yielded civil penalties of varying degrees. Section 274A of the Immigration and Nationality Act establishes separate and escalating ranges of penalties for (1) failing to properly complete or maintain I-9 forms ($216 to $2,156); and (2) knowingly hiring, recruiting, referring, or continuing to employ unauthorized aliens ($539 to $4,313). (These fine amounts represent the new, higher penalties that went into effect on August 1, 2016, as part of the Bipartisan Budget Act of 2015.) Over time, though, the government observed that employers appeared to regard these monetary fines more or less as a "cost of doing business." In a distinct paradigm shift, I-9 enforcement evolved from an administrative matter into an investigation with clear potential for full-blown criminal prosecution.

Comprehensive Layered Approach

Around 2006, the leadership of the U.S. Department of Homeland Security stated before a congressional judiciary subcommittee that it had learned from its mistakes regarding workplace enforcement and undertaken what it termed a "comprehensive layered approach." ICE's worksite enforcement strategy was to conduct investigations that would directly support felony charges and not just the traditional administrative proceedings set for under Section 274A. When the evidence gathered supported a federal criminal prosecution, ICE would work directly with the Offices of the United States Attorneys in subsequent court proceedings.

As part of its expanded model to increase the deterrent effect on employers, the government began to impose money laundering charges on seriously noncompliant employers. Most commonly identified with drug trafficking cases, money laundering is an auxiliary federal crime, used to amplify the seriousness of other federal, state, and foreign crimes (i.e., predicate offenses). It is principally designed to stop the flow of money to and from the predicate offense(s). Alien "harboring" is a predicate offense and is included on the "money laundering" predicate offense list. ("Harboring" provisions include conspiracy, and aiding and abetting. "Harboring" makes the violator criminally liable for encouraging or inducing an alien to reside in the United States, or knowingly or in reckless disregard of the fact that such residence violates the law.)

The money laundering statute is broadly construed and reaches any financial transaction that occurs with the proceeds of an unlawful activity. In contrast to civil liability, if convicted of money laundering, the criminal defendant forfeits and the federal government may seize any property involved in the crime. Property traceable to assets involved in the crime is also subject to seizure and forfeiture. Indeed, asset forfeiture is another key component in the ICE strategy to remove the financial incentive to hire unauthorized workers.

The comprehensive layered approach proved vigorous as ICE obtained over $31 million in criminal fines, restitutions, and civil judgments in worksite-related enforcement actions in fiscal year 2007. Fiscal year 2008 was even more brisk with ICE making more than 1,100 criminal arrests tied to worksite enforcement investigations, 135 of which were owners, managers, supervisors, or human resources employees who faced "harboring" and "knowing hire" charges and the related fines. The harshened consequences of noncompliance for owners as well as employees tasked with completing the I-9 form resulted in more robust I-9 compliance programs, training, and preventative audits performed out of an abundance of caution. This was encouraged by ICE as it published the ICE Mutual Agreement Between Government and Employers (IMAGE) best practices for employer compliance standards. Further, the approach may have encouraged some employers to join the E-verify program to take advantage of a perceived "safe harbor" provision against charges of knowingly employing someone who is not authorized to work.

Federal Contract Debarment

The federal contract debarment process has been another tool used to achieve I-9 compliance. The federal government can decline to contract with a business that employs an illegal workforce and "unscrupulously undercuts their competitors to gain an unfair market advantage because of reduced labor costs." Contractors may be considered for debarment if they have been found to have either knowingly hired an unauthorized worker or continued to employ an alien who is or has become unauthorized. Debarred companies are prohibited from competing for new government contracts.

How Employers Are Selected for Investigation

The current administration has stated that ICE continues to utilize a multipronged approach for worksite enforcement that includes outreach. Generally, the post-September 11, 2001, enforcement focus shifted heavily towards monitoring employers tied to the U.S. infrastructure, such as those at airports, power and water sources, and military bases, but still used general leads. Cases involving national security or public safety implications receive top priority, as do investigations involving allegations of egregious worker exploitation, where the welfare of employees may be at risk. To date, ICE has not announced any specific official changes in worksite enforcement strategy and verification related to I-9 inspections.

Lead-driven cases are also generated by leads from other government agencies. For example, ICE has confirmed in the past that it has accepted leads from other agencies, such as the U.S. Department of Labor (DOL). DOL inspectors can review I-9 forms for basic compliance but do not pursue investigations into possible hiring violations. DOL inspectors can transmit a referral form to ICE identifying suspected violations and other relevant information.

Another example of interagency cooperation is found in the 2006 Memorandum of Understanding (MOU) between U.S. Citizenship and Immigration Services (USCIS) and ICE regarding the work of the Office of Fraud Detection and National Security (FDNS) that was formed to address national security and immigration benefit fraud concerns. The FDNS has oversight over issues of national security threats present in applications and the detection of immigration benefit fraud, all in cooperation with ICE.

Finally, employers participating in E-Verify should be aware of the Information Sharing Memorandum of Agreement between ICE and USCIS. The agreement outlines the coordination and management of referrals between USCIS's Verification Division and ICE regarding the "misuse, abuse or fraudulent use of the E-Verify program and ICE requests to USCIS for Verification Information System (VIS) data with regard to ongoing ICE investigations." This means that USCIS can send ICE information about data from an employer's E-verify account when it appears to be the result of misuse, abuse, or fraud. USCIS has created a dedicated E-Verify monitoring and compliance office to review employer usage data, and in fiscal year 2015 this office engaged in 113,571 "compliance actions" and 965 "interagency actions." The "interagency actions" signal a referral to ICE or the U.S. Department of Justice's Immigrant and Employee Rights Section (IER) for noncompliance investigation.

What to Watch for

HSI currently has around 6,000 enforcement officers and 6,000 special agents. They are reportedly working on a hiring plan to add an additional 10,000 mandated officers and agents. Additional agents dedicated to enforcement, as well as the wide-ranging legal and interdepartmental and interagency tools described above, provide ample opportunity to expand enforcement activity as predicted by Homan. Employers should look to several sensitive points in compliance once they are certain that they have the basics under control.

  • Ensure that electronic I-9 data is fully compliant with the regulations and that the data is correct. ICE, IER, and any other authorized agency can ask for an excel spreadsheet to review I-9 and E-verify data. Data that is incorrect or illogical can cause negative outcomes in the government's assessment of your compliance.
  • Many employers prepare procedures for the I-9 process and leave it at that; however, the E-Verify process merits its own set of procedures as well. Creating or updating E-Verify procedures will give the compliance team the opportunity to run through the procedures to ensure that its understanding of what is required is aligned with the true legal mandates of the E-Verify program, which can sometimes be confused with related I-9 procedures.
  • Statistics: Has the compliance team reviewed data for potential document abuse issues? This is one of the data mining analyses that the government can run on company information. If the data shows patterns of too many List A documents for lawful permanent residents, there might be an issue of document abuse alleged. Although that may not be supported by the totality of the evidence, it is important to know in advance what patterns are appearing in the data.
  • Continue to train I-9 and E-Verify staff. Even long-held rules for completing the form I-9 can change at a moment's notice under new agency leadership. It is always important to have the compliance team engage in training on a regular basis. Training has always been one of the hallmarks of a compliant employer that ICE recognizes favorably.
  • The Trump administration has eliminated the Obama administration's Priority Enforcement Program (PEP). Going forward there should be no expectation of PEP-related protections for individuals identified during an HSI inspection. ICE has informed employers that once it issues an I-9 notice of inspection, it cannot rule out an immigration raid on their premises, even absent a criminal investigation. For this reason, employers should ensure that their staffs are prepared to properly manage all forms of law enforcement encounters at the worksite.

A version of this article first appeared on Law360.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions