The ICE-Man Continue to Cometh – I-9 Site Visits Increase

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The Homeland Security Investigations (HSI) unit of Immigration and Customs Enforcement (ICE) has been a tear with worksite investigations and enforcement actions. Since January 2018, HSI has served more than 5,200 notices on businesses to conduct audits of their I-9 Forms. The I-9 is the document employers must complete, along with a new employee, within three days of the date of hire to verify that new employee has authorization to work in the United States.

After an employer receives a Notice of Inspection, it has three days to provide its I-9 forms for the government officer to review. It’s the rare employer that has every ‘t’ crossed and ‘I’ dotted. Many self-audits that employers conduct as well as government audits reveal some type of error. The majority are minor issues that do not result in any enforcement action. Some errors, however, are substantive and result in fines or ongoing government monitoring. Willful noncompliance heads down the path of substantial fines and possible time behind bars.

To put into perspective how much of a priority the current administration has made of worksite enforcement, HSI opened 1,716 investigations in fiscal year 2017 (October 1, 2016 – September 30, 2017). For the current fiscal year, which still has two months to go, HSI already has initiated 6,093 investigations. Total arrests jumped from 311 to 1,659. That represents arrests in 27% of the cases so far this year compared to 18% last year. Last year’s enforcement actions required employers to cough up more than a $100 million in forfeitures, fines and restitution.

Rather than sit back and wait for the knock at the door, employers of all sizes would do themselves a favor by reviewing their I-9 practices and evaluating compliance. Seek counsel if needed and put in place a protocol that provides for consistent compliance. And don’t keep any more I-9s than necessary. You need to have an I-9 on file for all current employees and keep I-9s until the later of three years from the date of hire or one year from termination.

Why the uptick in aggressive enforcement action? The administration argues it’s about protecting jobs for those who are authorized to work in this country. But the way the administration spends taxpayer money on sound-proof booths at the EPA, private errands for cabinet members, a winter White House in Florida and other colossal wastes, one can’t help but think this is a way to help pay for those junkets.