U.S. Immigration and Customs Enforcement (ICE) launched a nationwide I-9 audit initiative on July 1, issuing Notices of Inspection (NOIs) to 652 employers (see the ICE press release). This action confirms the new method of enforcement promised by representatives of the Obama Administration. In April 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano indicated that ICE would focus its resources in the worksite enforcement program on the criminal prosecution of employers that knowingly hire illegal workers and that ICE would use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

The one-day blitz does not appear to be mere window dressing or a one-time occurrence. In mid-August, John Morton, the new chief of ICE, said that the agency is set to increase the number of companies it will audit and systematically impose fines on violators. Violations could also lead to criminal charges, he said. For examples of some recent investigations, see the August 2009 issue of the Immigration eAuthority.   

For the most part, employers are just beginning to learn the results of the July audits. ICE forensic auditors are completing document reviews and employers may be receiving a “Notice of Intent to Fine” which lists I-9 documentation failures and proposed fines. In certain cases where more egregious violations are uncovered, the U.S. Attorneys office may become involved to initiate criminal proceedings (e.g., for harboring illegal aliens, assisting with securing fraudulent documents, or for a variety of other violations).

Employers that are subject to an I-9 audit must be aware that ICE investigators may explore possible criminal charges against employers. Anecdotally, this seems more likely when a company’s employees have been placed in custody by ICE for immigration violations. Such employees may remain in the United States pending deportation and act as witnesses against employer representatives. 

Key advice for employers: be careful during what may appear to be a simple I-9 audit. Seemingly innocent actions such as mentioning “I knew they were illegal,” improperly completing an I-9, ignoring Social Security No-Match letters and other relevant activities can be combined to create a case for knowingly employing or harboring illegal aliens. Taking steps in advance to audit existing I-9 records and following up on No-Match issues, along with involving counsel as soon as an investigation starts, can help reduce future exposure.

Note: This article was published in the September 2009 issue of the Immigration eAuthority.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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