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 the individual.
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 possible exposure.
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.