U.S. Immigration and Customs Enforcement (ICE) has recently announced that it will be auditing approximately 1,000 U.S. employers, from a range of industries and of varying sizes, to verify they are complying with I-9 work authorization verification procedures.  These new actions bring ICE’s 2011 I-9 audit total to over 2,300 employers, already eclipsing the (then) record-setting 2010 number.

While criminal prosecutions of companies who violate the I-9 laws are rare, ICE is flexing its civil sanction powers as never before, and levying substantial fines for I-9 paperwork violations.  Depending upon the number and severity of I-9 violations, these fines can add up quickly, and wind up costing a company tens or even hundreds of thousands of dollars.  What can your company do to prepare itself for these audits? More generally, what can your company do to demonstrate that it takes its I-9 compliance obligations seriously?

First, your company should conduct self-audits of its I-9s on either an annual or semi-annual basis.  These audits can be conducted by internal staff trained in proper I-9 completion and verification procedures.  Alternatively, the audit can be conducted by external business immigration counsel schooled in the ins and outs of I-9 and employer sanctions laws.   Counsel can then offer the company an assessment of how compliant it is, and whether the client is in danger of potential exposure to civil penalties.  The Kramer Levin Business Immigration Group is well equipped to assist you with this important audit function.  Second, consider purchasing an electronic I-9 management system.  Most are Web-based programs that walk employers through the I-9 completion process, making it much less likely to make errors along the way.  Each system has its own benefits and disadvantages, so you’ll need to look at several vendors’ products. 

Third, consider signing up for the Department of Homeland Security (DHS)’s E-Verify program.  E-Verify is an Internet-based system which allows employers to electronically verify the employment eligibility of newly hired employees.  Once registered, employers submit an electronic query to determine an employee’s work authorization.  E-Verify then compares the information submitted against millions of records stored in DHS and Social Security Administration (SSA) databases, and gives the employer an instantaneous response on that employee’s work eligibility. 

While most private employers are not currently obligated to sign up for E-Verify, we believe that it is only a matter of time before they will be required to do so.  Several states, including Alabama, Arizona, Mississippi, and Utah, have already passed laws requiring all of its employers (public and private) to use E-Verify to verify the employment eligibility of its employees.  In addition, the Supreme Court, in Chamber of Commerce v. Whiting, recently held that the Arizona law mandating E-Verify was not preempted by federal immigration law, and therefore was constitutional.  This holding will likely embolden more states to pass similar mandatory E-Verify laws.  Furthermore, Rep. Lamar Smith (R-Texas) has recently introduced a bill which would mandate the use of E-Verify nationwide.  As we believe E-Verify will become mandatory for all U.S. employers, you should consider signing up now in order to familiarize yourself with the system and its requirements in advance.  The same private vendors that offer an electronic I-9 compliance program also integrate E-Verify into their products.

Finally, consider voluntarily enrolling in ICE’s Mutual Agreement between Government and Employers (IMAGE) program.  Under IMAGE, employers agree to allow ICE audit a random sampling of their I-9s, and agree to follow certain pre-established best employment practices.  In return, enrollment in IMAGE has some very favorable benefits to employers.  First, if ICE finds that fewer than 50 percent of the I-9s it has audited have so-called substantive violations, ICE will waive any applicable fines.  (If ICE auditors find more than 50 percent of the audited I-9s contain substantive violations, they agree to seek only the minimum penalty per violation).  In addition, ICE agrees not to conduct any further I-9 audits for future hires for at least two years (unless it learns of specific information alleging the company knowingly is employing unauthorized workers).  This gives a company peace of mind in knowing that an ICE investigator will not come knocking again at any time over the next 24 months.  And most important of all, ICE may be willing to guarantee that at no time in the future will any of the I-9s it either has audited or could have audited will be subject to any future I-9 audits or penalties.  In effect, this is an offer of a blanket type of amnesty that your immigration counsel may be able to negotiate with ICE as an incentive for your company to join the IMAGE program.