U.S. Immigration and Customs Enforcement Continues Trend of Employer I-9 Investigations

U.S. Immigration and Customs Enforcement (ICE) has initiated a new round of I-9 investigations. The agency has indicated that the emphasis is on “businesses related to critical infrastructure and key resources,” which includes sectors such as banking and finance, commercial nuclear reactors, dams, drinking water and water treatment systems, government facilities, information technology, telecommunications and transportation systems, among others.

These inspections seek to ensure that companies hire only individuals authorized to work in the United States, and they involve inspecting I-9 forms and documents provided by employees in order to verify identity and employment authorization.

An employer typically has three days from receipt of the notice of inspection to produce the I-9 forms for review; additional supporting documentation may be requested as well. If violations are found, ICE may impose a number of different penalties. Depending on the severity of the violation, these can range from fines to preclusion from bidding for federal contracts. In the most serious cases, criminal charges may be filed.

In addition to these I-9 inspections by ICE, employers of foreign nationals are also subject to site visits by the Department of Homeland Security (DHS). In these site visits, DHS intends to confirm that the employer is a bona fide organization that knowingly filed the visa petition for its employee, and that the employee is actually working for the employer in the position that was the subject of the visa petition, and at the wage promised in the petition. No prior notice of a site visit is given; the inspecting officer simply shows up at the job site.

While there is no way to prevent a site visit or the issuance of a notice of inspection, good policies and practices are essential to avoiding problems. It is critical that employers implement an immigration compliance policy that requires their organization to routinely conduct internal I-9/immigration audits and engage in regular and systematic training of personnel charged with the responsibility for I-9s and other immigration matters.