Last October, Thomas Homan, the acting director of Immigration and Customs Enforcement (ICE), announced that 2018 would see a significant increase in worksite related investigations. He pledged a four-fold increase in worksite audits. This seems unsurprising given the Trump campaign and subsequent Trump administration’s focus on reducing or ending illegal immigration to the United States.

In January, ICE announced a new worksite enforcement strategy in conjunction with servicing notices of inspection and the arrest of at least 21 undocumented workers at nearly 100 7-Eleven stores in 17 states across the nation. In February, ICE conducted another targeted operation in Los Angeles to arrest 212 individuals for violating federal immigration laws and to serve 122 notices of inspection to businesses for various compliance violations. In April, ICE conducted a workplace raid in Tennessee pursuant to a criminal search warrant. The employer was suspected of illegally hiring undocumented workers, failure to report wages, and payroll tax violations. The warrant led to the arrest of close to 100 individuals for violations of immigration laws.

This new strategy includes a three-pronged approach:

1. Compliance through Form I-9 inspections, civil fines, and referrals for debarment.
2. Enforcement through the prosecution of employers who knowingly employ undocumented workers, as well as the arrest of unauthorized workers.
3. Outreach to instill a culture of compliance and accountability.

What Does This Mean for Employers?

ICE has pledged that employers of all sizes and in all industries will be targeted for audits. In an audit, an employer will receive a “notice of inspection.” This has previously been more like service of a subpoena. However, given the new approach, where there is reason to suspect the employer is engaging in the employment of unauthorized workers as in the 7-Eleven case, that notice of inspection may be accompanied by the arrest of unauthorized workers. Even if a company’s workers are authorized, the company must produce its Forms I-9 within three business days to ICE for inspection. However, while an ICE officer is at the place of business, he or she may watch for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other criminal conduct.

What if There Are Paperwork Errors on Our Forms I-9 That Are Audited?

While the steepest penalties are reserved for those who knowingly harbor unauthorized workers, the penalties for substantial paperwork errors on the Forms I-9 of legally authorized workers (including U.S. citizens or legal permanent residents) can subject an employer to serious fines.

Form I-9 errors are divided into two categories: technical or substantive. Technical errors often may be corrected within 10 business days of notification by ICE. If those errors are not corrected, however, the technical errors turn into substantive errors. Substantive errors include missing Forms I-9, improper documents used to verify status, missing signatures, failure to reverify authorization after expiration, uncorrected technical errors, and a variety of other issues. Substantive errors can result in penalties that exceed $2,000 per form.

Additionally, these penalties can be increased using a variety of aggravating factors such as business size, lack of good faith, seriousness, employment of unauthorized aliens, and history of the employer (think: compliance efforts and past enforcement).

What Can We Do to Avoid Problems?

First and foremost, make sure that your employees who are in charge of hiring and onboarding have been trained in Form I-9 compliance. Form I-9 training is not a “one and done” venture. As the Form I-9 and its interpretation changes, your hiring managers and HR personnel will need updated training.

Second, complete your own Form I-9 audit before ICE shows up at your door. Conducting regular, periodic audits allows you to correct any errors before ICE arrives, as well as to identify any systematic issues or concerns that may help avoid the same errors moving forward. Good faith efforts to comply with the current laws will generally mitigate fines and penalties. Regardless, you should make sure you perform the audit under the supervision of someone experienced with these matters. There are strict nondiscrimination rules that may dictate how corrections are made, and improperly correcting errors may lead to bigger fines and penalties.

For more information, please contact us or your regular Parker Poe contact.