ICE Guide to Worksite Enforcement Investigations: You Can Run but You Can’t Hide

[Editor’s Note: today’s blog is courtesy of Amy Peck of Jackson Lewis LLP] Immigration and Customs Enforcement (ICE) recently stated that I-9 inspections will “touch on employers of all sizes and in every state in the nation,” and then backed it up by issuing Notices of Inspection (NOI) to 1,000 businesses last week.  The NOIs instruct companies that they have the standard three (3) days to present the Forms I-9 of their employees for inspection. While we tend to think of the I-9 audit as strictly administrative, the ICE Guide to Worksite Enforcement Investigations(“Guide”) recently released to LawLogix reveals that the purpose of the I-9 audit is two-fold:   to identify either substantive or technical violations that might result in the issuance of a fine or warning, or to identify any violations that might lead to criminal prosecution of an employer. It is this latter reason—potential criminal prosecution of the owners and principal managers of a business—that is the subject of the Guide and brings new urgency to businesses. Published in March of 2008, the ICE Guide to Worksite Enforcement (“Guide”) was previously an internal-only (and “Law Enforcement Sensitive”) document provided to ICE Special Agents and Forensic Auditors who are responsible for conducting worksite enforcement investigations. The purpose of this Guide (which is separate and distinct from the previously released ICE Guide to Administrative Form I-9 Inspections and Civil Monetary Penalties) is to serve as a starting point for how worksite enforcement cases are initiated, prioritized, investigated and documented internally. While much of the Guide has been redacted, it is still useful to see how the agency classifies I-9 violations and works with Assistant US Attorneys to prosecute criminal cases. ICE’s Enforcement Goal – the Same, but Expanding The Guide reveals that worksite enforcement investigations continue to be a priority of ICE and a core part of the Department of Homeland Security’s (DHS) interior enforcement strategy through which the agency will attempt to “eliminate the magnet of illegal employment by targeting egregious employers, identity thieves, and aliens working at critical infrastructure sites.” In recent months, ICE has widened the enforcement net even further, targeting all employers that violate immigration law by failing to observe I-9 rules. Why me? The Guide states that ICE Agents receive information regarding potential worksite violations from a variety of sources including: complaints from the general public; referrals from other state and federal law enforcement offices; and apprehended undocumented employees who provide information to law enforcement. Once identified, the Guide states that ICE will prioritize the investigations, putting national security and public safety on the top. After that, ICE reviews complaints involving critical infrastructure and egregious employer involvement, such as if the employer is actively involved in the criminal activity by harboring, smuggling, concealing or transporting undocumented aliens for employment purposes. How does it all start? ICE Special Agents will use a variety of investigative techniques set forth in the Guide. These include using informants, consensual monitoring, undercover activity, surveillance, or the arrest of unauthorized workers who then may cooperate with ICE in exchange for legalization or work authorization. ICE may also utilize other local, state, or federal agency resources, such as reaching out to the  Social Security Administration to determine if No Match letters were sent and reviewing E-verify information. The Guide states that ICE must consider all applicable criminal statutes pertaining to violations discovered during a worksite investigation for the criminal prosecution of an employer or principal manager. These statutes include but are not limited to:

  • Alien Smuggling -8 USC Sec. 1324(a)(1)(A)(i)
  • Transporting an Illegal Alien-  8 USC Sec. 1324(a)(1)(A)(ii)
  • Concealing, Harboring or Shielding and Illegal Alien from Detection-8 USC Sec. 1324(a)(1)(A)(iii)
  • Encouraging or Inducing an Illegal Alien to Enter the U.S.- 8 USC Sec. 1324(a)(1)(A)(iv)
  • Felony Provision for Knowingly Hire/Continue to Employ Illegal Aliens-8 USC Sec. 1324(a)(3)(A)
  • Fraud or Misuse of Visas- 18 USCC Sec. 1546
  • Forced Labor- 18 USC Sec. 1589
  • False Statements-18 USC Sec. 1001
  • Structuring Transactions to Evade Reporting Requirements- 31 USC Sec. 5324
  • Money Laundering- 18 USC 1956
  • Conspiracy- 18 USC Sec. 371

Once identified, the Guide states that ICE must pursue criminal prosecution for all applicable criminal violations and must consult with the US attorney “at the earliest possible point in the investigation.” Don’t forget about the I-9s! While criminal prosecutions are always priority #1 for ICE, the Guide makes it clear that agents should use Form I-9 inspections for instances when a criminal search warrant is neither feasible or appropriate  (which would cover a lot of potential cases). Among other things, I-9 inspections allow ICE to uncover patterns of identity theft, fraudulent use of documents or bad-acting human resource officials .In the near future, I’ll write more about what’s involved in an I-9 audit, but suffice it to say, it’s not something you want to face alone. There can be little doubt that ICE is serious about worksite enforcement of employment eligibility verification.   The ICE Guide to Worksite Enforcement Investigations confirms what many of us have known all along: with a struggling economy and immigration reform nowhere in sight, ICE will continue to “seek and create a culture of compliance among U.S. employers” in whatever ways it can. Further, there’s a rumor that ICE has a new guide (distributed internally) which reflects this expanding theme.  While many employers have been lulled into complacency over the years, it’s not too late to spring into action and take control of your I-9 compliance program. Not sure where to start? Here’s a quick overview: contact experienced immigration counsel, develop policies and procedures, adopt an electronic I-9 solution, and fix those errors while you can! _________________________________________________ Amy Peck is in private practice in Omaha, Nebraska with Jackson Lewis LLP. For a full biography and contact information, please visit Amy’s page here.