ICE to Employers: Expect More Form I-9 Audits, Arrests and Outreach

Roy Maurer By Roy Maurer February 6, 2018
ICE to Employers: Expect More Form I-9 Audits, Arrests and Outreach

​Immigration and Customs Enforcement (ICE) wants employers to understand that, going forward, the agency will increase Form I-9 audits, conduct more worksite raids and promote involvement in the government's voluntary compliance program.

ICE agents conducted workplace raids on 77 businesses in San Francisco, Sacramento and San Jose Feb. 2. Earlier in January, nearly 100 7-Eleven stores were targeted in the largest workplace immigration enforcement operation conducted under President Donald Trump.
Many immigration experts have been preparing employers to expect an increase in worksite enforcement since the Trump administration came into office. The agency's focus is not unexpected, said Maria del Carmen Ramos, a partner in the Tampa, Fla., office of law firm Shumaker, Loop & Kendrick. With no pending bills to address unauthorized immigration in Congress, it is unsurprising that worksite enforcement would be the administration's next step to abate it, she said.

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ICE audited 1,360 organizations in 2017, resulting in 71 indictments and 55 convictions of business owners and managers. I-9 audits had fallen sharply after 2013, when President Barack Obama's administration shifted its focus to deporting undocumented people with criminal records, Ramos said.

ICE's statement highlighted the resolution in 2017 of a case against Asplundh Tree Experts Co., said Bruce Buchanan, a founding partner at Sebelist Buchanan Law with offices in Nashville, Tenn., and Atlanta, and the co-author of The I-9 and E-Verify Handbook (Alan House Publishing, 2017).

Asplundh is a tree trimming and brush clearing company headquartered in Willow Grove, Pa. According to court documents, from 2010 until December 2014, the company hired and rehired employees across the United States by accepting identification documents it knew to be fraudulent.

"This case revealed a scheme to unlawfully employ undocumented workers, in which the highest levels of Asplundh management remained willfully blind while lower-level managers hired and rehired employees they knew to be ineligible to work in the United States," Buchanan said. "The company pleaded guilty and was ordered to pay a monetary forfeiture judgment in the amount of $80 million—the largest judgment ever handed down in a worksite immigration enforcement investigation."

The company agreed to pay an additional $15 million to satisfy civil claims arising out of its failure to comply with immigration law, for a total cost of $95 million.

Civil penalties for knowingly employing unauthorized immigrants can range from $539 to $21,563. "Repeat offenders and companies hiring a larger number of undocumented employees receive fines on the higher end of the range," Ramos said.

In addition, Form I-9 paperwork violations carry a penalty of $216 to $2,156 per worker. "The easiest way for employers to avoid potential fines is to make sure they are complying with their I-9 obligations—before they get audited," Ramos said. "Employers should also consider conducting a self-audit to minimize the potential for fines."

Things to consider when conducting an I-9 self-audit, according to Ramos, include:

  • Reviewing current policies and procedures for compliance.
  • Comparing I-9 forms with payroll records to ensure there is a completed form for each employee.
  • Making sure hard-copy I-9 forms are maintained in a separate file from employees' personnel files, or maintained electronically in compliance with the law.
  • Correcting and/or replacing the form. "If the employer needs to correct the I-9 form, the new information should be inserted, signed and dated as of the time of the insertion," Ramos said. "If the omission or mistake was in Section 1 of the I-9 form, the employee should also sign and date the correction. Above all, the form should not be backdated."

Working Together

The ICE statement also promoted its ICE Mutual Agreement between Government and Employers (IMAGE) voluntary compliance program, in which organizations can be certified by the agency for complying with the law. As part of the program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system. Employers also learn about the importance of avoiding discrimination based on immigration status or national origin during the hiring process. 

After first completing a self-assessment questionnaire, participating employers must enroll in the E-Verify program, establish a written hiring and employment eligibility verification policy and submit to a companywide Form I-9 audit.

If looking for another resource, the Council for Global Immigration, an affiliate of the Society for Human Resource Management, has produced this e-learning course covering employment eligibility laws and regulations, Form I-9 requirements and the E-Verify system, including how to handle typical case results. It includes real-life scenarios and activities, which will prepare users to effectively manage the employment verification process.

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