Employment Law Report
Worksite Immigration Enforcement
Seven months ago, U.S. Immigration and Customs Enforcement (“ICE”) Deputy Director Thomas Homan issued a directive that called for increased worksite enforcement investigations to ensure U.S. businesses maintain a culture of compliance. ICE recently announced that the agency’s Homeland Security Investigations (“HSI”) has already doubled the amount of ongoing worksite cases this fiscal year compared to the last fully completed fiscal year.
From Oct. 1, 2017, through May 4, 2018, HSI opened 3,510 worksite investigations; initiated 2,282 I-9 audits; and made 594 criminal and 610 administrative worksite-related arrests, respectively. In comparison, for the entire 2017 fiscal year – from October 2016 to September 2017 – HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.
“Our worksite enforcement strategy continues to focus on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law,” said Acting Executive Associate Director for HSI, Derek N. Benner. “HSI’s worksite enforcement investigators help combat worker exploitation, illegal wages, child labor and other illegal practices.”
Under federal law, employers are required to verify the identity and employment eligibility of all individuals they hire and to document that information using the Employment Eligibility Verification Form I-9. ICE uses the I-9 inspection program to promote compliance with the law, part of a comprehensive strategy to address and deter illegal employment. The agency believes that inspections are one of the most powerful tools the federal government uses to ensure that businesses are complying with U.S. employment laws.
A worksite investigation usually begins when a notice of inspection alerts the business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law. Employers are required to produce their company’s I-9s within three business days, after which ICE will conduct an inspection for compliance. If employers are not in compliance with the law, an I-9 inspection of their business will likely result in civil fines and could lay the groundwork for criminal prosecution if they are knowingly violating the law. All workers encountered during these investigations who are unauthorized to remain in the United States are subject to administrative arrest and removal from the country.
Failure to follow the law can result in criminal and civil penalties. In FY17, businesses were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case.
HSI’s worksite enforcement strategy includes leveraging the agency’s other investigative disciplines, since worksite investigations can often involve additional criminal activity, such as alien smuggling, human trafficking, money laundering, document fraud, worker exploitation and/or substandard wage and working conditions.
HSI uses a three-pronged approach to worksite enforcement: compliance, from I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.
Please notify us if you would like the immigration team at Wyatt to provide an audit of your I-9 forms or other worksite compliance with immigration laws.