Insiders at the Office of Federal Contract Compliance Programs (OFCCP) have advised us that the agency will stop inspecting contractors’ Form I-9, Employment Eligibility Verification documentation during onsite compliance evaluations.
We have been told that on Tuesday, November 9, 2010, Patricia Shiu, Director of OFCCP, announced during an internal videoconference that the agency will stop exercising its authority to inspect I-9 audits during onsite investigations. Historically, OFCCP has conducted these inspections pursuant to a Memorandum of Understanding (MOU) between the Department of Labor and Immigration and Customs Enforcement (ICE), the enforcement division of the Department of Homeland Security. The MOU can be accessed here.
By ceasing I-9 inspections, OFCCP will be able to focus its audits on issues it has authority to remedy and resolve. Under the MOU, OFCCP does not have enforcement authority with respect to I-9s, and it cannot assess penalties or fines. Instead, it must refer I-9 compliance problems to ICE. By relinquishing I-9 inspection authority, OFCCP can concentrate its resources on the areas of importance under its Strategic Plan for 2010-2016, which was discussed in a prior Seyfarth Management Alert that can be accessed here. OFCCP does not appear to have reduced this new approach to writing, nor has it provided a timeline for when it will stop its I-9 inspections.
ICE will continue its extensive monitoring and has stepped up its enforcement activities. On September 15, 2010, ICE began sending out additional Notices of Inspection (NOI), alerting employers that ICE will be inspecting their hiring records to assess compliance with employment eligibility regulations. ICE unofficially confirmed that 500 to 700 NOIs will be sent out over the next few months. As such, all employers, including federal contractors and subcontractors, should continue to follow strict processes for ensuring I-9 compliance.