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ICE Reports 60 Percent Increase in Form I-9 Audits with Plans to Turn up the Heat this Summer

Yesterday, Immigration and Customs Enforcement (ICE) confirmed what many employers across the US have been feeling this year – the sneaking suspicion that a Form I-9 investigation may soon be on their horizon. To a certain degree, this is not surprising news. President Trump has implemented a wide variety of new policies and procedures affecting immigration, including increasing arrests of undocumented individuals, travel bans for individuals from certain countries, the end of the Deferred Action for Childhood Arrivals (DACA) program, termination of temporary protected status (TPS) for several countries, as well as a newfound scrutiny of existing immigration programs such as the H-1B.

And while these initiatives have certainly affected many organizations throughout the US, the Trump administration has largely spared US employers from the additional scrutiny and attention which is possible under the law. But ever since late last year, the enforcement tide has been gradually shifting, culminating in today’s announcement from Derek Benner, head of ICE’s Homeland Security Investigations unit, that the agency is looking to foster a new “culture of compliance” which will be a total “game-changer” for employers.

Here’s what you need to know:

Audits have increased 60%

According to the yesterday’s press release, ICE’s Homeland Security Investigations unit (HSI) opened 3,510 worksite investigations and conducted 2,282 employer audits between October 1, 2017 (the beginning of the fiscal year) and May 4, 2018 – which represents a nearly 60 percent increase from 2016/2017 when the agency only conducted 1,360 investigations during the entire fiscal year. Many of these audits have been “in the news” as employers have scrambled to respond to the sudden demand for Form I-9 documentation, which often must be presented to ICE within a very unforgiving 3-day deadline.

Notable audits have impacted roughly 100 7-Eleven franchise locations in 17 states, 77 businesses in Northern California, and 122 employers in Los Angeles (during a 1-week period). More recently, ICE Form I-9 audits have spread to New Mexico, Texas, and Illinois, while the agency has also resorted to “raid style” enforcement operations against employers suspected of employing undocumented individuals (a move reminiscent of the George W. Bush years, when worksite raids were more common and anticipated).

The Dog Days of Summer are Ahead

Late last year, Thomas Honan (who was then Acting Director of ICE) made a big splash in Washington, DC when he announced that the agency would quadruple or quintuple the number of worksite enforcement operations as part of a coordinated effort to eliminate the “magnet” of a good job which many believe draws individuals to enter (and stay) in the country illegally.

While Mr. Honan is reportedly stepping down as the nation’s top immigration enforcer, it appears the agency he led is making good on his promise to dramatically increase the number of audits this summer. According to an article by the Associated Press (also published yesterday), ICE has another nationwide wave of audits planned in the coming months which would push the total well over 5,000 by September 30, 2018 (the end of the fiscal year).

Audit sweeps in general are not that uncommon, but ICE is clearly pushing itself to put up some big numbers on the scoreboard (so to speak). This begs the question as to whether the agency has the necessary resources to initiate so many investigations in a relatively short period of time – a problem compounded by the fact that ICE has been extremely busy in other areas of national security as well.

The Return of Employment Compliance Inspection Center

As it turns out, ICE has plans – big plans – to increase worksite audit numbers to as many as 15,000 per year (subject to funding) through an expansion of its audit mega-center known as the Employment Compliance Inspection Center (or ECIC for short). The ECIC was initially opened in late 2010/early 2011 in order to support local ICE offices with “large scale” Form I-9 audits (generally those involving more than 1,000 I-9s).

To borrow a phrase often used in the military, the ECIC acts as a “force multiplier” for I-9 auditing, dramatically increasing the effectiveness of local ICE operations with a dedicated staff who are solely devoted to reviewing, analyzing, and assessing I-9s for compliance. As of 2015, the ECIC had a staff of roughly 17 individuals, but ICE is now looking to multiply that number as well. According to Mr. Benner (as quoted by the AP), ICE would like to put up to 250 auditors in the ECIC along with enhanced technology and a team of attorneys to achieve the agency’s goal of auditing 10,000 to 15,000 employers on an annual basis.

Mr. Benner also hinted at other process/technology changes as well, including electronically scanning the documents to help flag suspicious activity and serving Notices of Inspections electronically or by certified mail, instead of in person. It remains to be seen how far ICE will go (and how quickly changes can be made), but it seems, now more than ever, that employers should start forming a “reasonable expectation” that they may in fact be audited for Form I-9 compliance in the near future.

What’s Next

During the coming weeks, we’ll be publishing several short articles and practice advisories surrounding the Form I-9 audit process – exploring the latest in Form I-9 penalty assessments, self-auditing tips, and audit preparedness. Our next guest blog (scheduled for later this week) will quickly review last year’s Form I-9 penalty decisions from the Office of the Chief Administration Hearing Officer (OCAHO).

In the meantime, if you need more information on Form I-9 compliance, please feel free to contact us here. You can also subscribe directly to this blog (and receive instant email notifications) by entering your email address in the following form.


About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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