As part of its 2015 fiscal year Annual Performance Plan published on October 1, 2014, the Department of Homeland Security’s (DHS) Office of Inspector General (OIG) will review the approach of Immigration and Customs Enforcement (ICE) to I-9 inspections. Specifically, it will “determine whether ICE has effective policies and practices to identify and select businesses for I-9 inspections and re-inspections.”

ICE is charged with administering the I-9 worksite enforcement program and routinely inspects and investigates employers to ensure lawful employment verification practices. Review of ICE’s approach to I-9 inspections is part of OIG’s goal to ensure proper enforcement. Within this directive, OIG aims to effectively combat immigration fraud, improve reliability and accuracy of personal identification documents, and enhance information sharing and privacy safeguards.

Focusing on the effectiveness of DHS in selecting businesses for I-9 audits is consistent with the internal overhaul efforts of the agency during the past five years. Last year, for example, the agency clarified its objective, which reiterated its stated goal in 2009, to pursue criminal prosecutions against employers that knowingly hire illegal workers, rather than going after unauthorized workers themselves. In its 2013 plan, the OIG noted that stakeholders criticized ICE’s strategy for being too tough or not tough enough. Some stakeholders also argued the agency was not effectively utilizing enforcement techniques, including raids, fines, and arrests geared toward both employees and employers. The goal was to evaluate whether worksite enforcement practices were effectively detecting, responding to, and deterring U.S. employers from violating immigration laws. Accordingly, while ICE has contended that its most recent focus on employers (as opposed to employees) has begun to reduce the so-called magnet for illegal workers, the agency’s critics have argued that illegal workers no longer have the same disincentive to pursue unlawful employment that they had under the prior administration. 

Between 2009, when ICE began focusing on prosecuting employers, and 2012, the agency conducted 9,140 inspections and issued $31.2 million in civil fines to employers. On February 11, 2014, OIG released a report on ICE’s worksite enforcement administrative inspection process, which evaluated whether the agency was conforming to the Immigration Reform and Control Act of 1986, which created the worksite enforcement program. The report revealed that ICE’s implementation of the program has not been consistent. Specifically, some field offices implemented enforcement differently than others, significantly reducing fines or issuing warnings rather than assessing fines. The inconsistencies may have hindered ICE’s mission to prevent or deter employers from violating immigration laws. Some field offices did not always document their actions adequately and did not maintain accurate and up-to-date administrative inspection data, making it more difficult to verify employers’ compliance. Additionally the report revealed that ICE has not determined whether its practices have improved compliance. OIG pointed out that because only a small number of employers are inspected, ICE should maximize the value of each inspection by ensuring that the process is carried out to achieve the greatest amount of media coverage to attempt to alter the behavior of the business community.  

In the February 11 report, OIG made three recommendations to ICE based on review of its implementation of worksite enforcement: (1) enforce the oversight procedures to ensure consistent application for worksite enforcement strategy and the administrative inspection process nationwide; (2) develop a process to evaluate the effectiveness of the administrative inspection process and modify the process based on the evaluation; and (3) direct Homeland Security Investigations (the worksite enforcement arm of ICE) field offices to provide consistent, accurate, and timely reporting and reconciliation of information on worksite enforcement strategies and administrative inspections.

ICE agreed with the second and third recommendations, but it did not agree with the first recommendation. Instead, ICE responded that the inconsistent investigation results were attributable to local mission priorities, resources, and socioeconomic characteristics, rather than inconsistent application of the worksite enforcement program. However, OIG identified internal practices that are outside of established ICE guidance that could cause variances in inspection outcomes, and therefore called for the recommendation to be open and unresolved until ICE addressed varied internal practices among its field offices.

Although OIG’s 2015 plan did not specifically raise the issue of inconsistencies in selecting businesses for I-9 audits, the agency will likely pay closer attention to its processes and evaluate how to employ a more uniform approach to consistent worksite enforcement. 

Employers should expect the number of audits conducted by ICE to continue to trend upwards. Employers are reminded to review immigration compliance policies and practices. When reviewing or evaluating compliance programs, it is essential that companies examine their hiring policies and practices, take steps to ensure their workforce is legal by making good faith efforts to verify employment eligibility, and proactively discuss compliance with experienced legal counsel. A prudent employer should contemplate reviewing I-9 policies, training persons responsible for I-9 completion, and conducting a self-audit of I-9 records (whether with knowledgeable internal staff or outside immigration counsel). In addition, employers should consider using electronic I-9 software to improve I-9 completion accuracy. Completing these steps is likely to reduce potential fines and the chance of other sanctions being imposed should your company be the subject of an ICE I-9 audit. Fines for knowingly employing illegal aliens range from $375 to $14,000 for unauthorized workers, while fines for paperwork I-9 violations can range from $110 to $1,100, with higher fines being imposed based on a percentage of errors. Businesses engaging in unlawful practices should take note of the significant penalties and ensure that they are in compliance with the law. As part of our comprehensive immigration compliance services, Ogletree Deakins can assist employers in implementing proper procedures to avoid liability.