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U.S. Immigration and Customs Enforcement Employer Audits to Continue in 2012

As reported by multiple sources, the Obama Administration, through the U.S. Immigration and Customs Enforcement (ICE), has begun conducting a new round of Form I-9 audits by issuing Notices of Inspections (NOIs) to hundreds, if not thousands, of businesses nationwide.   Most recently, ICE issued 500 NOIs to employers who had been audited in the last five years.  The NOI requests include documentation relating to hiring, payroll and other records to determine compliance with employment eligibility verification laws.  An employer that receives an NOI has three days to submit its Forms I-9 for inspection. In all, ICE conducted more than 2,300 audits in Fiscal Year (FY) 2011 (Oct. 1, 2010 to Sept. 30, 2011), compared to a total of 2,196 during FY 2010.  It is expected that the total number of audits for FY 2012, which started on Oct. 1, 2011, will be over 3,000. Notwithstanding the 500 NOIs already issued, ICE plans to target both large and small businesses across the country.  

Although the audits will include all industries, there are some industries which continue to be of particular concern to ICE, including agriculture and food, financial services, commercial nuclear reactors, drinking water and water treatment, postal and shipping, health care, transportation, construction, manufacturing and production, among others. The Obama Administration has long stated that workplace investigations are a key part of its efforts to enforce the U.S. immigration laws.  This new round of employer audits clearly shows that ICE will hold U.S. employers responsible if they fail to properly complete Forms I-9 and/or hire illegal workers.  Form I-9 compliance is a requirement for ALL employers in the U.S.  Specifically, an employer must complete a Form I-9 for ALL employees regardless of their nationality.  Yes, this includes U.S. citizens.  As a result, it is imperative that employers understand and consider whether they are compliant with such I-9 requirements before they receive an NOI from ICE. 

These ICE audits can lead to hefty civil fines ranging from $110 to $1,100 per violation for paperwork or technical Form I-9 violations, and $375 to $16,000 for each unauthorized alien hired or employed.  In the case of paperwork or technical violations, the fines are assessed per error on the Form I-9, not per form.  Additionally, employers, managers and other individuals responsible for the completion of the Forms I-9 can face criminal charges for engaging in a pattern or practice of knowingly hiring or continuing to employ unauthorized aliens. We expect ICE audits to continue throughout 2012, as it is an election year.  As such, we recommend that employers must immediately contact their immigration counsel and ask them to perform a comprehensive review of their I-9 records, policies and protocols, including performance of an internal Form I-9 audit.  In addition, we recommend that employers develop, adopt and implement a formal immigration policy based on the internal I-9 audit results.

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