Immigration & Customs Enforcement Launches 1,000 I-9 Audits as Obama Administration Continues to Target Employers

On November 19, 2009, John Morton, Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), announced the issuance of administrative subpoenas to 1,000 employers across the country seeking a wide array of business records. The subpoenas, known as Notices of Inspection (NOIs), inform the targeted employers that ICE will conduct audits of their business and hiring activities, and demand records to determine whether the business has committed “an offense against the United States” under the immigration laws. A copy of a redacted subpoena is available here.

While declining to release the names and locations of the targeted businesses, ICE announced that it selected the 1,000 employers based on investigative leads and intelligence, and because of the employers’ connection to public safety, national security, and critical infrastructure. The November 19 action follows on the heels of a release by ICE earlier this year of NOIs to 654 companies that resulted in the filing of formal notices to impose fines on 61 firms, with another 267 companies from that first national audit still under investigation.

This type of “forensic” audit involves a comprehensive review of the employer’s business records. The NOIs require surrender of Forms I-9 (Employment Eligibility Verifications), payroll reports, unemployment insurance tax reports, quarterly tax statements, listings of independent contractors, and vendors of the targeted business (including IRS Forms 1099), copies of any letters issued by the Social Security Administration related to a social security number “no match,” copies of any petitions submitted to the United States Citizenship and Immigration Services (USCIS), and documents related to the employer’s formation and business activities.

Given the continued focus of enforcement efforts on employers, company management must take proactive steps to confirm that their new hires and current employees (and the employees of their vendors and contractors) are authorized to work under federal immigration law. Enforcement activity in the worksite—both by federal and state agencies—has grown significantly, and the tactics deployed are increasingly aggressive.

Today, penalties for violations of federal and state immigration rules extend beyond costly civil fines; they also include imprisonment, asset forfeiture, and debarment from government contracting and from sponsorship of additional foreign workers. Executives, business managers, human resources staff members, worksite supervisors, and union stewards all face potential civil and criminal liability for failure to abide by the immigration laws.

For tips on how to prepare for a potential ICE audit, see our July 10, 2009 Management Alert.

Where to find help

The Seyfarth Workforce Authorization Team (SWATeam) is a team of attorneys and paralegals with experience in the workforce authorization area. The SWATeam provides employers with detailed information about and support for E-Verify registration, use, and compliance.

For more information about E-Verify, state laws relating to E-Verify, I-9s, or other workforce authorization matters, please contact the Seyfarth attorney with whom you work, or any Business Immigration attorney on our website. We stand ready to assist you.