ICE Workplace Audits Stepped Up

U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced on November 19, 2009, the issuance of Notices of Inspection (NOIs) to approximately 1,000 employers across the U.S. associated with critical infrastructure, alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.

The businesses served with audit notices were selected for inspection, ICE said, “as a result of investigative leads and intelligence and because of the business’ connection to public safety and national security — for example, privately owned critical infrastructure and key resources.” The names and locations of the businesses were not released “due to the ongoing, law enforcement sensitive nature of these audits.”

Audits involve a comprehensive review of Forms I-9 (Employment Eligibility Verification). Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law. ICE identified I-9 audits as “the most important administrative tool in building criminal cases and bringing employers into compliance with the law.”

Statistics resulting from 654 audits announced in July included:

• ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents, which was approximately 16 percent of the total number reviewed.
• As of November 19, 2009, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are being considered for NIFs.
• ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

Some clients are reporting receipt of subpoenas for wage and related records. Relying on inexperienced counsel and self-audits is no longer sufficient. Contact Ivener & Fullmer for guidance in particular cases, including conducting proactive pre-audits.