ICE Sends Over 650 Employers I-9 Audit Notices in Nationwide Immigration Enforcement Initiative
by Jackson Lewis

Six hundred fifty-two employers throughout the country are receiving I-9 Notice of Inspections (NOIs) from the Department of Homeland Security's Immigration and Customs Enforcement (ICE) unit, the Government has announced. ICE is the federal agency responsible for investigating employers for immigration worksite violations. The NOIs require employers to provide copies to ICE of all of their employee Form I-9s and supporting documents by a specified date. In most instances, however, employers are given only three business days to present their records to the local ICE office.

In announcing the initiative, ICE Assistant Secretary John Morton emphasized ICE's commitment to worksite enforcement. He said the audits were "a first step in ICE's long-term strategy to address and deter illegal employment." ICE noted that the employers were selected for inspection as a result of "leads and information obtained through other investigative means." The 652 NOIs exceed the total number of NOIs issued by ICE in all of Fiscal Year 2008. ICE declined to identify the companies receiving these notices on account of the "ongoing, law enforcement sensitive nature of these audits."

This action follows the Obama Administration's review of the nation's immigration worksite enforcement strategy. As a result, ICE has re-emphasized its commitment to seek criminal prosecutions of employers in lieu of civil fines. ICE has shifted Special Agents and investigative resources to pursuing criminal indictments and prosecutions against employers who knowingly hire or employ undocumented workers. What Employers Should Do

The receipt of an I-9 audit notice should be viewed now by employers as the preliminary step in determining whether ICE will initiate a criminal investigation and prosecution. Even if a criminal investigation does not result, employers found with I-9 violations could face civil fines. To mitigate the potential of a more serious criminal investigation resulting from an audit, employers should consider:

• Responding promptly to the audit notices or obtaining an extension of time from ICE;
• Maintaining copies of all documents presented to ICE;
• Refraining from taking any action that may be viewed as intentional tampering of the Form I-9s and supporting documents;
• Initiating an internal review of I-9 processes and procedures after responding to the ICE audit notice; and
• Conducting an internal I-9 audit and initiating corrective actions on defective I-9s that comply with ICE and civil rights requirements.

The Jackson Lewis Global Immigration practice group has extensive experience in supporting clients successfully through criminal and civil I-9 audits and investigations, including handling negotiations with local ICE Special Agent in Charge Offices and U.S. Attorneys' Offices. We stand ready to assist you if you have received an ICE I-9 Notice of Inspection or wish to prepare your company for any future inspection.