Immigration and Customs Enforcement, the principal investigative arm of the Department of Homeland Security, is initiating hundreds of worksite investigations by serving Notices of Inspection and Administrative Subpoenas on employers this week—many requesting that the requested documents be delivered Tuesday after the Labor Day. HR managers and in-house counsel may find less time to holiday.

As a key element of DHS’s internal immigration enforcement effort, ICE is going after employers that recruit, hire, and continue to employ unauthorized foreign nationals. ICE believes its increased investigative activity will impel employers to adopt conservative standard operating procedures that foster compliance with immigration-related employment laws. In testimony to the House Judiciary Committee, outgoing Homeland Security Secretary Janet Napolitano indicated that the Administration is focused on conducting criminal investigations and prosecuting employers who exploit the verification system or abuse their employees.

All employers are at risk. ICE reviews employers’ Forms I-9 in order to evaluate historical administrative compliance with regulatory requirements, and in some cases, reaches a conclusion that criminal charges are required for intentional or systematic violations. This can be based on elevated rates of employment of unauthorized foreign nationals. Employers also need to remain vigilant to assure compliance with these (sometimes) onerous employment verification compliance requirements. In addition, employers with multi-state locations may have to adhere to supplemental state verification compliance requirements.

Diligence, adequate resources and counsel are needed minimize exposure.