As we predicted from earlier enforcement efforts, the nation’s immigration enforcement agency is cracking down on employer compliance with employment verification laws through a bold new initiative to audit I-9 records. On July 1, 2009, the U.S. Immigration and Customs Enforcement agency (ICE) announced that it is issuing Notices of Inspection (NOIs) to 652 businesses nationwide. That figure represents a dramatic increase over the total of 503 notices issued throughout 2008.

The Notices inform targeted businesses that ICE will inspect their I-9 hiring records to verify their compliance with employment eligibility laws and regulations. By law, employers must complete and retain a Form I-9 employment verification record for each employee hired in the United States. To complete the form, the employer must inspect the employee’s relevant identity documents in order to determine whether the documents appear authentic and related to the employee. Even employers using the computerized E-Verify system still need to inspect identity documents presented to determine their authenticity.

ICE confirms that the 652 businesses notified were selected for inspection through investigative leads, but it has not published the names of the businesses affected at this time. The initiative reflects ICE’s commitment to using Form I-9 inspections to achieve its goal of enforcing employment verification laws. According to Department of Homeland Security Assistant Secretary for ICE John Morton, “ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE’s long-term strategy to address and deter illegal employment.” Under that strategy, ICE will be focusing its resources on the auditing and investigation of employers suspected of knowingly employing employees without proper work authorization. Audited business can expect that at least some of these inspections will result in further enforcement actions.

Typically, during an inspection audit ICE requires the surrender of all I-9 records within three days, leaving little time to take corrective action. Prudent employers proactively take steps to ensure compliance by implementing effective systems for completing, retaining, and internally auditing I-9 records on a routine basis. Failure to do so can put a company at risk of exposure to investigations by ICE and possible liability for violations of U.S. employment and immigration laws.

Summer Associate Michael Allen also contributed to this eUpdate.