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Employers' Internal Immigration Compliance Policies - The Fine Line

Employers’ internal policies and training programs are more important than ever as employers increasingly find themselves squeezed between enhanced Form I-9 compliance enforcement initiatives by Immigration and Customs Enforcement (ICE) on one side and Department of Justice hiring discrimination enforcement on the other.


After auditing ICE, the Acting Assistant Inspector General for Audits for the Department of Homeland Security’s Office of the Inspector General (www.oig.dhs.gov), Mark Bell, made three recommendations for improving ICE’s implementation of its worksite enforcement strategy. ICE is the DHS agency responsible for implementing this strategy and protecting employment opportunities for the nation’s lawful workers.

One of President Barack Obama’s first official acts was to revamp ICE’s worksite enforcement strategy to give priority to identifying employers who knowingly hire illegal workers and to use all available civil and administrative tools to penalize and deter illegal employment.

From fiscal years 2009 through 2012, Congress allocated about $531 million to fund and implement this strategy. Over that same period, ICE conducted 9,140 administrative I-9 inspections, issuing about $31.2 million in civil fines to employers.

According to the Acting Assistant Inspector General, ICE should:

#1: Enforce its oversight procedures to ensure consistent application of the worksite enforcement strategy administrative inspection process nationwide. 

#2: Develop a process to evaluate the effectiveness of the administrative inspection process and modify the process based on the evaluation.

#3: Direct Homeland Security Investigations field offices to provide consistent, accurate, and timely reporting of information on worksite administrative inspections.

Although Mr. Bell’s audit concluded ICE’s I-9 inspection process met the requirements of the Immigration and Nationality Act, he determined the agency failed to monitor or evaluate adequately the performance or outcomes of the process among its field offices. He also found the Homeland Security Investigations’ headquarters did not adequately oversee the offices to ensure they were consistent in issuing warnings and fines (finding some issued significantly more warnings than fines, and some field offices negotiated fines with employers — significantly reducing the amount — while others did not).

Employers should anticipate more fines, instead of warnings, from ICE. There also is expected to be less interest in reducing these assessments and more activity in regions that tended to have fewer inspections. The number of inspections also may increase overall. ICE likely will redouble efforts in monitoring field office activity, encouraging offices to conduct inspections in a more consistent fashion, and encouraging more precision in the internal deliberation supporting a fine assessment.

At the DOJ

On the other hand, employers also need to remain cognizant of the prohibitions against unlawful, even inadvertent, discrimination in the hiring process. In a recent trend, the Department of Justice is investigating and fining employers who require specific documentation from employees during the I-9 employment eligibility verification process. DOJ’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) often relies on statistics showing a large proportion of employees presenting specific documentation during the I-9 process to determine whether to pursue an investigation and charges for document abuse against an employer under the anti-discrimination provisions of the Immigration and Nationality Act, Section 274B.

Section 274B prohibits employers from requiring specific documentation for the I-9 verification process. Under the law, employees can present any unexpired documentation establishing identity and authorization to work from the list of acceptable documents. Lawful permanent residents, for example, may present either a permanent resident card (I-551 or “green card”) or a drivers’ license and a Social Security card. By reviewing data entered on the Form I-9 and information captured through E-Verify, OSC can identify employers with a high percentage of lawful permanent residents verified using a permanent resident card from List A of the List of Acceptable Documents. OSC is aggressively targeting employers for document abuse and seeking significant fines. Depending on the size of the employer, OSC can impose civil fines for document abuse amounting to tens of thousands, even well over $100,000.

Employers should review their internal policies and training programs to ensure that employees are allowed to present any acceptable combination of documents from the Form I-9 List of Acceptable Documents. Employers also should consult with counsel on ways to mitigate potential scrutiny by OSC for document abuse.

Jackson Lewis P.C. © 2020National Law Review, Volume IV, Number 139


About this Author

Sean G. Hanagan, Jackson Lewis, business immigration lawyer, employment eligibility verification attorney

Sean G. Hanagan is a Principal in the White Plains, New York, office of Jackson Lewis P.C.

Working with human resources professionals and in-house counsel, he helps employers develop business solutions and policies for the hire and movement of international staff. Mr. Hanagan advises on I-9 employment eligibility verification, E-Verify and social security issues, and on best practices to avoid hiring-related discrimination. He defends companies subject to government audits and investigations, and guides employers through...

Minnie Fu, Jackson Lewis, Immigration Litigation Lawyer, Employment VISA Applications attorney

Minnie Fu is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on assisting employers in obtaining employment-related visas and advising employers on compliance with U.S. immigration laws and regulations.

Ms. Fu has twenty years of experience in employment-based immigration matters, including nonimmigrant and immigrant visa matters, developing corporate immigration policies and procedures for best practices, and strategic corporate planning for international personnel employment by evaluating the impact of mergers, acquisitions, and reorganizations on corporate compliance with U.S. immigration law.

Jackson Lewis Law Firm, Immigration Attorney, Harry J. Joe

Harry Joe is a Shareholder in the Dallas, Texas office of Jackson Lewis P.C. and is head of the Immigration Group in Texas.

David Jones, Shareholder, Collegiate and Professional Sports, Jackson Lewis,

David S. Jones is a Shareholder in the firm’s Memphis office while maintaining a practice in the Las Vegas office of Jackson Lewis P.C. He has practiced law exclusively in the area of immigration and related employment matters for nearly fifteen years. He represents clients in complex matters relating to both immigration benefits and enforcement and in proceedings before the Department of Homeland Security, the Department of Labor, the Department of Justice and the Department of State, as well as in matters related to citizenship status discrimination...

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