Last Friday, the Second Annual Worksite Immigration Compliance Symposium was held at Stanford Law School’s Rock Center for Corporate Governance. Officials from ICE, OSC and the Department of Justice were all present to provide updates and answer questions. An important takeaway that jumpstarted the symposium was the role I-9 (and E-Verify) compliance plays in corporate governance, which is particularly relevant for publicly traded companies.
Presented by Dan Siciliano, Faculty Director of the Arthur and Toni Rembe Rock Center for Corporate Governance, I-9 Compliance could be a major risk for U.S. organizations which may someday have to be recognized on corporate balance sheets. According to Professor Siciliano, there are approximately 30 million I-9 Forms generated each year by U.S. employers. Accounting for a very low error rate estimate (of 35.5%), the projected cost of undiscovered liability could be over $103 billion to U.S. employers! (As a practical matter though, it’s very common to see I-9 error rates well above 50% based on our studies.) With all the reports about U.S. employers being issued I-9 fines and penalties, corporate executives are well on their way to devoting more resources to reduce I-9 liabilities. Indeed, this issue was first reported early last month here and it was exciting to meet many corporate executives at the Symposium.
Friday’s Symposium attracted three of the leading ICE officials to sunny Palo Alto, California. ICE Director John Morton, Rachel Ross, Section Chief of the Employer Compliance Inspection Center (ECIC), Worksite Enforcement Unit Office of Investigations, and Adam Wilson, Unit Chief of IMAGE were all present.
For those who are unfamiliar, ICE Director John Morton is the highest ranking executive at ICE. As keynote speaker, he delivered a consistent message addressed to U.S. employers to pay special attention to its hiring practices and procedures. This fiscal year alone, ICE would have conducted 3,000 I-9 inspections. This number will remain steady (if not continue to rise in the future). Part of Mr. Morton’s message included encouraging U.S. Employers to enroll in the E-Verify Program as a means to ensure its workforce is work authorized. Mr. Morton also encouraged employers to enroll in the IMAGE Program as a means of enjoying I-9 training and audit “immunity” benefits. (We’ll discuss more about IMAGE in the future.)
Rachel Ross, whom we’ve had the benefit of hearing speak at previous conferences, always provides clear instructions on ICE’s audit missions. Our emphasis has always been to encourage employers to conduct an audit of its I-9 Forms and it’s heartening to hear it straight from Ms. Ross herself, “We encourage self-audits!” Of course, this advice benefits any employer.
Taking a hard, objective review of one’s I-9 forms to ensure compliance, although a lengthy process, is always a best practice. Though, Paul Virtue, Partner at Baker & McKenzie and former INS General Counsel, cautioned that employers should conduct “self-audits” under the direction of a trained and experienced immigration attorney. At its full capacity, the ECIC, where Ms. Ross presides as Section Chief, will have 15 full-time auditors dedicated to assisting the existing 145 ICE Field Auditors that are stationed throughout the U.S. The team of 15 will support large scale and complex audits.
Finally, Adam Wilson, IMAGE Unit Chief provided some more insights on the new and improved IMAGE Program. Mr. Wilson was very open and honest with some of the challenges ICE has had regarding the IMAGE Program. His candor and warmness reflect a positive direction in helping employers (and immigration attorneys) understand the benefits of the IMAGE Program.
Also present were Jennifer Sultan, Acting Special Policy Counsel, Office of Special Counsel (OSC), David Searle, Assistant U.S. Attorney, Southern District of Texas, and The Honorable Ellen K. Thomas, Administrative Law Judge for the Executive Office for Immigration Review. The OSC will sound very familiar, if you’ve been reading the latest employer investigations (and resulting settlement agreements) for Form I-9 over-documentation or a pattern or practice of discriminatory hiring/firing practices based on citizenship and/or country of origin.
To be clear though, Ms. Sultan stressed that OSC pursues valid and reasonably credible claims filed against employers as opposed to just mere complaints from disgruntled individuals motivated by animus against certain groups of individuals. David Searle, Assistant U.S. Attorney, Southern District of Texas, offered us a positively robust breakdown of all the ways an organization could be charged with a crime, which could land individuals in jail. He also discussed the motivations that affect how organizations (and individuals) are charged with crimes and when the Department of Justice (DOJ) decides to pursue charges. A few of the ways in which the DOJ receives tips regarding criminal conduct are sourced from disgruntled workers, media reports, civil lawsuits, informants and citizens complaining.
This symposium also offered us a rare glimpse into the mind of Judge Ellen Thomas, as she discussed how the court interprets “Good Faith” when an employer is fighting to reduce its I-9 fines and penalties in court. Generally speaking, the role of an employer’s good faith is a critical factor in mitigating fines. This makes any efforts by an employer (before an ICE I-9 inspection occurs), that much more poignant!
Last, but not least, there was an esteemed panel of talented immigration attorneys that presented significant developments in the I-9 and E-Verify arena. We’ll cover each of these topics in subsequent articles. The takeaways for our readers: The Government is definitely ramping up its enforcement efforts. If ever an employer were to prepare for the worse of I-9 liabilities, the time to do so would be now, before regulations are to be officially released in the near future providing even more guidance and rules on I-9 remediation.
Reduce errors. Improve efficiency. See Guardian or EDGE in action.