In April, the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) agency implemented a new, comprehensive strategy the agency claims is designed to reduce the demand for illegal employment and to protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers who knowingly employ illegal workers. Employer and immigration advocacy groups have complained that this new policy puts employers at risk because, while employers must shoulder the burden of employment verification compliance, they are also prohibited from engaging in any conduct that could be deemed discriminatory on the basis of national origin or immigration status.

Nonetheless, in a move no doubt calculated to highlight ICE’s new enforcement strategy, on July 1, 2009, ICE launched an I-9 audit initiative by issuing Notices of Inspection (NOI) to 652 businesses nationwide. The NOIs alert business owners that ICE will be inspecting their records to determine whether these employers are complying with employment eligibility verification laws and regulations. According to the ICE Press Release, “[t]he 652 businesses being presented with a NOI . . . for a Form I-9 audit have been selected for inspection as a result of leads and information obtained through other investigative means.”

Investigative leads can come from a variety of sources, but commonly include complaints from disgruntled employees, employer filings of applications to legalize the status of undocumented workers while continuing to employ them illegally, and consumer complaints that one’s identity is being used by an employee.

Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. The I-9 requires employers to verify the identity and employment eligibility of each newly-hired employee. Employers must review and record the individual’s identity and employment authorization documents and ensure the documents reasonably appear genuine and to relate to the individual presenting them.

The NOIs will provide three (3) days for the employer to submit their I-9s for inspection. It is not likely that extensions will be granted, so employers who receive a NOI should act promptly and diligently. Retention of an experienced employment and/or immigration counsel is recommended due to the potential for monetary penalties and other sanctions.