The Government Gets Back in the Ring…Employers Around the Country Report a New Round of ICE Audits

[Editor’s Note: today’s blog is courtesy of Dawn Lurie of Greenberg Traurig]

The calls from clients who received visits from Department of Homeland Security’s Immigration and Customs Enforcement (ICE) agents started to trickle in last Thursday afternoon. Although nothing has been announced, we have reason to believe that ICE is conducting a new round of audits. While numbers have not been confirmed, we estimate that at least 500 employers nationwide will be receiving Notices of Inspection (NOIs).  We understand that the NOIs were issued based on robust “tips and leads” and many of the inspections could lead to criminal indictments.

NOIs will include requests for hiring, payroll and other records to determine compliance with employment eligibility verification laws. Employers will be expected to produce original I-9s within three days from service of the NOI. These audits were driven by ICE headquarters and it’s unlikely that requests for extensions of time will be granted for the I-9 production; however, payroll records, copies of immigration filings, copies of Social Security Administration communications requesting corrections, information on independent contractors, and related information generally can be submitted later than the three day time period. Our February 2011 and June 2011 GT Alerts discuss what to do if you receive a Notice of Inspection  from ICE.

If your company was not selected by ICE, consider yourself lucky; be smart, be proactive and consider the following:

  • Review your I-9 related compliance
  • Conduct internal audits and act on the results
  • Do not ignore Social Security and non-traditional no-match notifications and potential identity theft issues
  • Provide ongoing training to those individuals completing Form I-9s
  • Consider E-Verify and other best practices
  • Adopt a basic compliance plan

This administration continues to make it clear that the days when immigration compliance could be ignored and considered the “cost of doing business” are long gone.  Administrative audits, which can lead to criminal charges against the company and its officers and directors continue to be the tool of choice of ICE, and employers can expect these surges several times a year.

As ICE ramps up its auditor’s capabilities we can expect the inspections to become more sophisticated.  With the USCIS transformation team likely moving towards integration of the Form I-9 and E-Verify, the increased use of electronic I-9s, additional monitoring of the E-Verify system and a better trained and focused core of ICE agents, employers absolutely must consider the importance of proactive compliance planning and training.  A large of part of this process should include practices to detect identity theft and fraud issues.  Although enforcement mechanisms may change, one thing is for certain: the focus on audits and other worksite enforcement actions will continue.