New York Labor and Employment Law Report Blog Posting: Immigration Service Continues Aggressive Workplace Enforcement

November 1, 2010

By: Thomas G. Eron

Immigration and Customs Enforcement (“ICE”), the enforcement unit of the U.S. Immigration Service, is continuing its vigorous efforts to police the Immigration Reform and Control Act (“IRCA”), with a particular emphasis on employer audits and enforcement actions. IRCA prohibits employers from knowingly hiring or employing unauthorized workers, and requires employers to verify the work authorization of employees through the Form I-9 employment verification process at the time of initial employment.  Under the current Administration, ICE has dramatically ramped up I-9 audits and enforcement actions. In the fiscal year ending September 30, 2010, ICE conducted over 2,000 employer audits, compared to only 250 just three years ago. The dollar value of penalties assessed and the number of debarments of federal contractors for IRCA violations has also significantly increased.

ICE’s aggressive approach was highlighted last month by two investigations. First, a national retail clothing company agreed to pay a $1 million fine based on an ICE audit of its electronic I-9 verification system. While the audit did not reveal any evidence of the employment of unauthorized workers, there were systemic deficiencies in the employer’s compliance program that motivated ICE to demand the substantial fine.

In addition to seeking civil penalties and potential debarment from federal contracts, ICE has pursued criminal charges against employers and company officers. IRCA authorizes criminal penalties for employers that engage in a “pattern or practice” of knowingly employing unauthorized workers. In one recent case, ICE identified 16 unauthorized workers through an I-9 audit of company records. The company advised ICE that the employees had been terminated, but a subsequent investigation revealed that at least two of the workers remained on the payroll and had been advised by the business owner to “go out and get good social security numbers.” The business owner and the company vice president now face criminal charges for knowingly continuing to employ unauthorized aliens.

These enforcement actions derive from ICE’s 2009 comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for lawful workers. Under this strategy, ICE focuses its resources on the auditing and investigation of employers suspected of knowingly employing illegal workers. In conjunction with this initiative, ICE has conducted high-profile, targeted audits of employers with connections to public safety and national security, as well as those employers identified during ICE investigations as potential employers of unauthorized workers.

The aggressive enforcement attitude of ICE should be an urgent reminder to senior human resources personnel to: (i) re-evaluate I-9 procedures; (ii) conduct self-audits of I-9 records; (iii) remain alert to circumstances that may suggest an issue with an employee’s work authorization; and (iv) avoid any conduct that could be interpreted by ICE as encouragement of, acquiescence in, or constructive knowledge of, fraudulent I-9 documentation.