As part of its new strategy of enforcing the nation’s immigration laws by
targeting employers, U.S. Immigration and Customs Enforcement (ICE) announced on
July 1, 2009, that it had issued 652 Notices of Inspection (NOIs) to businesses
nationwide asking for production of all I-9s and related personnel documents and
information. During all of fiscal year 2008, ICE issued only 503 NOIs.
In April 2009, ICE implemented a new strategy of focusing its resources on
investigating employers suspected of cultivating illegal workplaces by knowingly
employing unauthorized workers. Rather than continuing the Bush administration’s
high-profile raids of workplaces to arrest and deport undocumented workers, the
Obama administration is directing its enforcement activity at employers by way
of inspections, fines, penalties (including debarment) and criminal charges. In
fact, on July 7, 2009, ICE announced the imposition of a $40,000 fine on Krispy
Kreme for violations revealed during an I-9 inspection.
Employers must complete and retain a Form I-9 for each individual they hire
for employment in the United States. This form requires employers to review and
record the individual's identity and work authorization document(s), and
determine whether the document(s) reasonably appear to be genuine and related to
ICE noted that the 652 businesses that received an NOI were selected as a
result of leads and information obtained through other investigative means. An
NOI is often the first step in a broader investigation by ICE regarding an
employer's compliance with immigration law.
Businesses receiving an NOI should thoroughly review the notice to understand
the scope of the inspection, and obtain legal counsel as soon as possible to
assist in the production of requested materials and interact with ICE to reduce
ICE’s current focus on employers, as evidenced by the issuance of 652 NOIs,
should cause all employers to review their current I-9 procedures and
immigration compliance programs, and amend if necessary. Employers should also
periodically conduct I-9 audits to be prepared for an inspection especially as
under relevant law, ICE is only required to provide three business days’ notice
of an inspection.
McGuireWoods LLP has significant experience in creating and updating
immigration compliance programs, training human resources personnel in
completing and retaining I-9 Forms, conducting internal I-9 audits, and
representing clients facing an ICE investigation or audit. For more information,
please see our
Immigration Practice, or contact the authors.