White House Budget Reveals Latest I-9 Audit Stats and Plans for I-9 Worksite Enforcement
Yesterday, the White House unveiled a $4.8 trillion budget for the next fiscal year which includes $49.8 billion in funding for a wide variety of DHS initiatives, including border security, cybersecurity, and immigration enforcement. While President Trump’s budget proposal is generally viewed as a “political” document (that serves as a starting point for negotiations with Congress), it nevertheless provides a window into his administration’s priorities for the rest of the year and beyond (if he achieves a second term).
And to no one’s surprise, the budget reveals his continued interest in immigration enforcement across a wide spectrum of activities that are handled by Immigration and Customs Enforcement (ICE). For example, the DHS budget includes $3.1 billion for 60,000 detention beds in connection with the apprehension of individuals who are subject to removal and $543.6 million to support law enforcement hiring and workload growth (including additional law enforcement officers and support personnel).
But if you’re reading this blog, you’re probably most concerned about the impact on your Form I-9 practices and procedures, including the ever-important “audit preparedness” exercise. Well, you’re in luck, because we actually have a LOT to discuss, courtesy of several pages of budgetary documents which reveal the current and future states of worksite enforcement. Let’s begin!
Before we look into the future of I-9 enforcement, let’s take a quick trip down memory lane and revisit the FY2019 audit statistics as revealed by the budget proposal. Here are the numbers worth knowing:
6,812: the number of new worksite investigations
6,456: the number of Form I-9 inspections
2,675: the total number of arrests resulting from I-9 inspections (2,048 administrative arrests and 627 criminal arrests)
$14,300,000: judicial fines, forfeitures, and restitutions against employers in violation of I-9 requirements
But looking at the raw numbers alone doesn’t quite tell the whole story. For that, we need to look back just two years ago when the numbers painted an entirely different picture – one where I-9 audits and enforcement in general were clearly not a significant priority for the administration.
All of that changed though in late 2017 when 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.
The results of this initiative can be seen in the chart below (which is comprised of data from DHS budget requests and ICE press releases). As we begin 2020, employers can now fully expect to see these same types of numbers (if not more) due in large part to the staffing and technology enhancements described below.
Staffing is key
This latest DHS budget seeks to increase ICE’s Homeland Security Investigations (HSI) staffing by hiring new Special Agents, Supervisory Special Agents, Direct Investigative Support Staff, and Mission/Admin Support Staff. The support staff will include headquarters-based support personnel and field-based support personnel such as Criminal Research Specialists, Investigative Analysts, SAC Support staff, Seized Property Specialists, Victim Assistance Specialists, and Computer Forensic Analysts.
According to the Department of Homeland Security, these positions will be able to support HSI with its anticipated increase in investigative hours for case work related to a broad set of initiatives including worksite enforcement. The budget justifications also provide a brief glimpse into the inner workings of ICE by describing some of their recent program and automation initiatives as they look to ramp up worksite enforcement under President Trump’s direction.
I-9 Audit Backlogs create incentive for staffing increase and new automation
As a result of the I-9 audit surge in FY 2019 (Oct 2018 through Sept 2019), many ICE offices had to reallocate their resources, dedicating additional manpower to focus on worksite investigations. Despite the shifting in resources, the budget indicates that many locations have experienced a backlog of I-9 forms requiring audit and subsequent investigations – an experience shared by many attorneys who practice in this area.
In response, HSI hired 90 Junior Compliance Officers (JCO) nationwide to assist auditors with the backlog (see our prior blog post here which discussed some of these assignments). In addition, HSI is implementing more efficient procedures for the service of Notices of Inspections (NOIs) to businesses, including service via certified mail. At the same time, HSI will also conduct additional advanced worksite training classes at the Federal Law Enforcement Training Center (FLETC) and in the field.
The budget request also revealed a “major effort to automated Form I-9 audits” utilizing an automation tool known as HAWke which will greatly enhance HSI’s audit capabilities while releasing resources to conduct additional criminal worksite investigations. According to the budget documents, a test pilot of HAWke is anticipated to be rolled out to the field by mid-2020.
Continuing with our “bird related” system theme, the budget request also mentions ICE’s use of a new data analytics tool called the Repository for Analytics in a Virtualized Environment (“RAVEn”) platform, which is designed to increase the velocity of data entry, search, and retrieval in ICE related operations. Through automation, RAVEn was able to ingest and process 16 different worksite enforcement audits, comprised of 55,278 individual I-9s, which resulted in a savings of 289 working days, or 2,312 hours.
The I-9 Force Multiplier
The DHS budget request also highlights the activities (and challenges) associated with the agency’s Employer Compliance Inspection Center (ECIC). In a nutshell, the ECIC is designed to handle large-scale I-9 audits initiated across the US, at a central location. While the center has been in existence for some time now, the agency has long recognized the need to further increase their Form I-9 audit capacity while at the same time ensuring the consistent application of I-9 inspection policies and strategies.
In recent years, the ECIC has gone even further in developing a process to evaluate the effectiveness of the administrative inspection process on a national scale by directing HSI field offices to provide consistent, accurate, and timely reporting and reconciliation of information on worksite enforcement inspections.
The FY2021 budget request for the ECIC includes an increase of 5 positions, 3 FTE, and $0.6M for additional personnel, all of which is designed to “enable more Special Agents in HSI field offices to concentrate their expertise on investigation and enforcement activities instead of on audit work.”
Sharing is Caring
The budget request also described ICE’s intention to foster even greater collaboration with sister agencies in helping to enforce immigration laws. Specifically, ICE intends to cooperate more closely with external partners, including the United States Citizenship and Immigration Services (USCIS), the Internal Revenue Service (IRS), the Social Security Administration (SSA), the Department of Labor (DOL), the Department of Justice (DOJ), and other state and local agencies, including law enforcement.
ICE already has agreements with a wide variety of these agencies, enabling them to obtain (or share) information in certain instances that may be pertinent to a worksite investigation. For example, ICE can allow DOL to interview any person ICE detains for removal through a worksite enforcement activity; grant a temporary law enforcement parole or deferred action to any witness needed for a DOL investigation of a labor dispute; and refer information concerning a potential labor violation to DOL. In return, DOL can notify ICE if a labor problem reveals a concern about I-9 or immigration violations.
So the bottom line is that there is plenty of overlap which can lead to multiple investigations for an employer with suspect hiring practices.
Employers should expect additional I-9 Audit Waves
Last but certainly not least, HSI indicated that they will continue to initiate “surge operations” which are designed to increase the number of worksite audits conducted and ensure that “businesses of all sizes and geographic areas are fully aware of HSI’s worksite enforcement efforts.” In other words, HSI wants to make a statement – and that statement is, “all employers are subject to a Form I-9 inspection.”
To punctuate that thought, HSI noted that with millions of businesses operating in the United States, HSI needs increased training and staffing to achieve effective enforcement nationwide. While the agency has yet to reach that optimum level of staffing and training, employers across the US should nevertheless expect to hear from their friendly neighborhood ICE agent in the coming months and years ahead.