On November 20, 2009 the ICE Assistant Secretary, John Morton, announced the issuance of Notices of Inspection (NOI) to 1,000 employers across the country to inform these companies that ICE will be auditing their hiring records to determine whether they comply with employment eligibility verification laws. The businesses selected are enterprises associated with the country’s critical infrastructure and were selected for inspection as a result of investigation and intelligence leads, as well as their business connection to public safety and national security. ICE did not release the names of the companies targeted in this round of audits.
The audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. Earlier this year ICE identified Form I-9 audits as the most important administrative tool it has for building criminal cases and bringing employers into compliance with the law. ICE’s major enforcement priority is specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking immigration laws and knowingly hiring illegal workers. Evidence of noncompliance discovered in the audits could result in civil penalties and/or criminal prosecution.
In light of ICE’s stated enforcement priority, Form I-9 audits will likely continue. Employers should not be surprised if they are issued an NOI. To prepare for such a possibility employers should develop and implement a Form I-9 compliance program. The program should include elements such as: establishing and maintaining a written Form I-9 policy, designating a compliance officer, integrating Form I-9 compliance with overall personnel policies and providing clear guidance to hiring personnel. Companies are also advised to do a self-audit, and if the audit reveals the company is not in compliance, the company should consult with counsel and take immediate steps to comply.