Making good on the Trump administration’s pledge to crack down on illegal immigration, U.S. Immigration and Customs Enforcement has dramatically increased its number of worksite enforcement investigations. From Oct. 1, 2017, to May 4, 2018, ICE opened more than 3,500 worksite investigations, initiated nearly 2,300 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. That’s roughly double the number of investigations it launched during the last fully completed fiscal year.
According to Acting Director Thomas Homan, ICE will prosecute employers that knowingly hire undocumented workers. The workers themselves will be detained and deported. The stated goal is to create a “culture of compliance,” but critics of the increased enforcement claim it only serves to create a “culture of fear.”
While these specific enforcement actions came about as the result of criminal investigations, ICE Spokeswoman Danielle Bennett says the media and employers often conflate the terms audit and raid, thus painting a misleadingly ominous picture of what is a routine process.
“People like to use the term ‘raid’ [when they are talking about an audit], but this is the least raid type of enforcement action you are going to see,” says Bennett. “Everybody talks about the potential consequences, but we may look at the tax records and the hiring records and say, ‘You’re doing a great job. Keep it up!’ ”
The process itself begins with a formal Notice of Inspection, which gives an employer three business days to produce its employment records, after which the audit commences. However, Paul Virtue, a partner at Mayer Brown and former general counsel of the U.S. Immigration and Naturalization Service, advises clients not to wait until they receive a Notice of Inspection to “make sure their house is in order.”
“If you wait for the Notice of Inspection, it gets to be too late to identify systemic issues in I-9 completion, some of which may be simple mistakes that are inadvertent and could be resolved with training,” says Virtue.
Virtue recommends employers conduct an internal audit of their I-9 forms and also designate certain individuals who will be responsible for interfacing with ICE auditors if a Notice of Inspection is issued. If that internal audit turns up undocumented workers, Virtue says, the employer is not obligated to notify ICE. However, they must be terminated as soon as possible.
Granted, many employers feel a sense of loyalty to their immigrant workforce, some of whom have worked for the company for many years. Increasingly, such employers are seeking to help their undocumented workers remain working and avoid deportation, says David Jones, regional managing partner in the Memphis office of Fisher Phillips.
“We’ve been seeing more and more employers trying to find a way to help their employees in this situation,” says Jones. “Depending on the employee’s situation, it may be possible for the employer to help that person get status, but that is going to be completely on a case-by-case basis.”
In those instances, his firm will seek ways to assist them in their endeavor, but Jones cautions employers cannot keep undocumented workers on the payroll while such initiatives are ongoing.
“Some employers will take that as attorney-client privilege and wait for ICE to show up,” says Jones. “They cannot continue employing the individual at that point because we are documenting to the government that the employer knew because they are trying to help them get status.”
Looking ahead, ICE has developed a plan to open as many as 15,000 new audits per year, subject to funding and other resources. The agency’s proposal calls for the creation of an Employer Compliance Inspection Center, which Bennett says will serve as a centralized location where ICE can pool resources and streamline processes, thus enabling it to reach its target.
However, Jones cautions employers to resist the temptation to become “overly aggressive” in their I-9 policies–a common mistake, as employers seek to achieve compliance with immigration laws.
“A lot of employers swing too far to the other side without realizing the DOJ enforces against I-9 policies that are too stringent,” says Jones. “If every time you come across [an immigrant], you say, ‘I need to see your permanent resident card,’ or you assume a person is undocumented because he or she is Hispanic, so you ask for more documentation, those are violations, too.”