ICE ENFORCEMENT ACTIVITY HAS DOUBLED AND MORE INCREASES PLANNED

Written on March 31, 2020.

During Fiscal Year 2018, which began last October 1, U.S. Immigration and Customs Enforcement (ICE) has doubled its enforcement activities. It has opened some 3,510 workplace investigations, between October 1 and May 4, up from 1,716 during all of the previous fiscal year. That number is expected to reach around 5,500 by the end of the current fiscal year, more than triple the previous year. The most audits conducted during the Obama Administration in a single year was 3,127. Further, ICE officials would like to open as many as 15,000 audits a year, depending on funding and other factors. As part of the increased audits, the Agency will also focus on criminal cases against employers as well as arresting and deporting employees who are in the country illegally.

ICE audits generally begin with a Notice of Inspection subpoena which allows the company three days to turn over its I-9 forms, along with a list of other documents such as payroll information, tax statements and other corporate documents. ICE reviews the I-9 forms and returns to the employer a "Notice of Suspect Documents" that list employees whose proof of work authorization is questionable. In the past, ICE instructed employers to terminate those workers if they could not prove work authorization, but now there is an increased emphasis on also arresting illegal workers.

ICE also has increased the fines that are assessed after January 27, 2017. ICE calculates fines by dividing the number of violations by the total number of employees to reach a violation percentage. The penalties range from $220.00 to $2,191.00 per violation, depending on whether it is a first, second or third offense. An example of a company with 100 employees with 10 I-9 violations and 20 improper employment violations would have a 10% violation percentage for the I-9 violations and a 20% violation percentage for the hiring violations, which could result in a fine anywhere from something over $40,000.00 to over $50,000.00 for a first offense, depending on the calculation methodology. Employers almost always end up paying something as a result of ICE audits and how ICE conducts the computation is very controversial, and will likely end up before the administrative hearing officers.

Wise employers will conduct immigration compliance audits by an immigration compliance attorney and correct errors that can reduce the potential fines and keep employers out of serious legal difficulties. The fact that all or almost all employees are U.S. citizens and/or the employer uses E-Verify does not solve the problem. None of these things affect substantive or technical errors on the I-9 forms, nor does it protect identity fraud in terms of E-Verify. Making sure the company HR personnel are familiar with the I-9 particulars is helpful, as is having an immigration compliance policy.