Employers Beware: ICE Targeting Companies for Immigration Enforcement

It wasn’t that long ago that the news outlets were full of stories about immigration raids, federal agents hawkishly swooping down on a chicken processing plant or a construction site, carrying off as many illegal immigrant workers as they could, starting massive deportation proceedings against the people caught in their talons. With the change in presidential administrations two years ago, immigration enforcement became less noisily public, as U.S. Immigration and Customs Enforcement (ICE) tried a different tack, focusing more on employers and their compliance with federal immigration law in the hiring process, according to a recent article in the Wall Street Journal. (See Crackdown on Illegal Workers Grows, by Miriam Jordan, Wall Street Journal, 20.Jan.2011.)

The Wall Street Journal remarked on the enormous increase in ICE immigration compliance audits, which almost doubled in the last fiscal year, with fines against employers of illegal immigrants rising from $1 million in 2009 to $7 million in 2010. It also contrasted the Bush-era enforcement strategy of ICE – which favored big, highly-publicized round-ups of illegal workers, followed by deportations – with the Obama administration’s preference for low-key employer enforcement actions that often result in the dismissal of large numbers of workers whose eligibility for legal employment cannot be verified.

Under federal law, employers are required to verify each worker’s identity and eligibility to work here legally, and must have a completed I-9 form on file for each worker, showing that the employer has duly checked the documents required. The I-9 instructions include an exhaustive list of all the specific documents legally acceptable as proof of identity and employment eligibility; no other documents will qualify.

The head of ICE, John Morton, told the Wall Street Journal last week that his agency plans to establish a new office within ICE – the Employment Compliance Inspection Center – with specially-trained auditors who would comb through I-9 files of companies chosen for audits, searching for evidence of potential violations of employment eligibility verification requirements.

According to the Wall Street Journal, small business owners are particularly concerned about the audits, because small businesses often have been the target of employer-based enforcement efforts. These concerns are not without justification; ICE’s John Morton told the WSJ, “…we wouldn’t be limited by the size of a company.” Small businesses are also worried about discrimination suits that might arise if they require extra documentation from workers they suspect are here illegally, the article reported.

Another article on the subject, in the Minneapolis-St. Paul Star Tribune, noted that employer audits are increasing costs for businesses that now are forced to hire lawyers and add human resources departments in order to avoid fines or even criminal charges for immigration problems with their workforce. (See ICE Shift in Tactics: Raids to Records, by James Walsh, Minneapolis-St. Paul Star Tribune, 21.Jan.2011.) According to the Star Tribune, other critics complain that ICE’s new enforcement strategy is simply ineffective, because unauthorized workers are usually fired, not deported, and can simply find another employer and work there until ICE gets around to auditing that company.

Problematic or not, employer-focused immigration enforcement is a reality of which businesses of all sizes need to be aware, and the best way to prevent problems is to take affirmative steps to comply with the law, an ICE spokesperson told the WSJ. We at the Murthy Law Firm could not agree more. We can help employers to avoid future problems by auditing their I-9 compliance systems to ensure that their processes and procedures are robust enough to prevent immigration violations. This is another case of an ounce of prevention being worth a pound of cure – and then some.