September 18, 2009 by Kate Kalmykov
John Morton, the newly appointed Secretary of U.S. Immigration and Customs Enforcement (ICE), the enforcement arm of the Department of Homeland Security (DHS) responsible for investigating immigration violations and enforcing immigration laws at the worksite said this week that ICE will continue to crackdown on employers who hire unauthorized workers. He warned employers that "You are going to see audits regularly and on a larger scale.” Secretary Morton reiterated that the agency is set to increase the number of companies it will audit and will civil impose fines on violators. ICE will also pursue criminal charges against bad-faith actors.
Secretary Morton’s comments reiterate the announcement made on July 1 by DHS Secretary Janet Napolitano that the agency would actively audit employers to verify whether their employees were eligible to work. He further confirmed that there are 654 companies currently under investigation ICE and that many more employers will receive Notices of Inspection soon.
Most recently, ICE’s audit of American Apparel, Inc. a clothing manufacturer and retailer made national headlines after the company announced that it would be laying off 1,500 employees following receipt of a Notice of Inspection. The layoffs are estimated to impact 25% of the company’s workforce. American Apparel, Inc. is also likely to face thousands of dollars in penalties for hiring workers who weren’t eligible to be employed. The government has publicly stated that fines against the company may exceed $800 per unauthorized employee. Earlier this year, Krispy Kreme Doughnut Corporation was also fined by ICE for violations of immigration laws following an audit of the company’s I-9s that revealed that the company employed dozens of illegal aliens at one of their doughnut factories in Cincinnati.
With the Obama Administration’s support of increased I-9 enforcement actions, it is clear that employers must pre-empt immigration related liabilities due to non-compliance with federal immigration regulations by being proactive. Internal I-9 audits are invaluable tools for identifying issues and correcting violations. Bringing in experienced immigration counsel to train human resources personnel on all aspects of immigration compliance and establish proper record-keeping procedures can significantly limit exposure and liability.
Employers who receive notices of inspection are advised to contact their immigration counsel as quickly as possible. Generally, these notices only provide three days for the employer to submit their I-9s to ICE for review. This short period of time is critical. Counsel must be contacted as quickly as possible. Employers must gather all of the company’s I-9s and supporting documentation to make sure that it is available to ICE. It is advisable to have counsel review the company’s payroll to identify any discrepancies between the number of employees and the company’s I-9s. All efforts should be made to correct any I-9s with obvious errors. Company representatives responding to the Notice of Investigation should always retain copies of any documentation submitted to ICE. Employers who can demonstrate good-faith efforts to comply with immigration laws are more likely to be assessed lower level civil fines if violations are uncovered.
For more information on government investigations and how I-9 compliance requirements affect your business please visit our website http://www.worksite-compliance.com.
