ICE Continues to Target Employers for I-9 Audits

Back in 1986, Congress passed the Immigration Reform and Control Act (IRCA), which required all U.S. employers to verify their employees’ eligibility to work legally in the United States, using Form I-9 and several forms of identification. For years, enforcement of these I-9 requirements usually meant going after individual employees – often illegal immigrants who used borrowed Social Security numbers and other fraudulent identification to establish their right to work here.

That enforcement paradigm has been shifting in recent years. The government turned from what might be called the “retail” level – targeting individuals – to the “wholesale” level, going after the companies that illegally hire people who lack proper work authorization. The introduction of E-Verify made it easier for employers to check prospective employees against an online database, to verify their employment eligibility, but it also gave employers one less excuse for noncompliance.

Recent moves have made it even more imperative for employers to have sound I-9 compliance procedures in place. On April 30, 2009, Immigration and Customs Enforcement (ICE) announced a new worksite enforcement strategy, designed to concentrate ICE resources on criminal prosecutions of employers, instead of bringing hundreds of cases against individual violators. According to ICE statistics, the agency initiated I-9 audits against 3,769 companies from fiscal year 2009 through January 2011, when ICE announced the formation of a special I-9 compliance team to support field auditors in their enforcement efforts nationwide. (See ICE & Tyson Foods Partner in an Effort to Protect the Nation’s Lawful Workforce; ICE also announces creation of a center for I-9 inspections, ICE Press Release, 20.Jan.2011.)

For employers, the fallout from this new program has been significant – even for those not specifically targeted by ICE. It has created a climate of fear, especially in business sectors that depend heavily on immigrant labor; but as Leon Versfeld, a Kansas City immigration attorney, recently told the New York Times, “Any company is at risk at any given time.” (See As Immigration Audits Increase, Some Employers Pay a High Price, by Adriana Gardella, New York Times, 13.Jul.2011.) The Times article notes that “In one prominent case, American Apparel, the clothing manufacturer, was forced to terminate 1,800 undocumented workers after a 2009 audit. Chipotle Mexican Grill, the restaurant chain, has let go hundreds of workers since its audit began last year.” (See also USCIS Launches I-9 Central Portal to Help Employers Comply, MurthyDotCom NewsBrief, 03.Jun.2011.)

According to the Times, the Obama administration stepped up enforcement against businesses in the hope that choking off the demand for illegal workers – at the root – ultimately will reduce illegal immigration; by contrast, says the Times, the Bush administration attacked the problem at the other end, favoring splashy workplace raids that arrested large numbers of immigrant workers. As the NYT article suggests, employers have to adjust to their uncomfortable new position in the hotseat:

“‘The master narrative of immigration reform is being crafted around the notion of unscrupulous employers seeking cheap labor,’ said Craig Regelbrugge, a lawyer and lobbyist with the American Nursery and Landscape Association. Unscrupulous employers exist, Mr. Regelbrugge said, but more often he sees business owners who are just trying to follow the law. When a new hire produces seemingly legitimate forms of documentation required by the I-9 form, the employer must accept them. (To refuse could expose the owner to charges of employment discrimination.) ‘The employer is not required to be a forensics expert,’ said Monte Lake, an immigration lawyer in Washington. The upshot of the more aggressive enforcement is that even employers who have followed the rules can be devastated by an audit that compels them to fire valuable, long-time employees.” [emphasis added]

To underscore the draconian consequences these audits can have, the Times related the story of a California plant nursery that lost over a quarter of its workforce when the company could not produce sufficient documentation for all of its employees. Since then, the company has begun checking its new hires against the E-Verify database, to prevent further problems with ICE.

These cautionary tales should give pause to any business owner – especially those lacking a compliance plan to ensure their employees can work here legally, or – worse yet – lacking sufficient proof to satisfy the I-9 standards. The best defense is to be proactive. Here, the Murthy Law Firm can help, reviewing I-9 files for ICE compliance and helping to remedy any deficiencies, to protect employers located across the U.S. from fines and potential criminal liability in the event that ICE comes calling for an audit. If you have questions about your company’s obligations under the I-9 process, contact the firm for a consultation. A Murthy lawyer stands ready to assist you.