Immigration & Customs Enforcement (ICE) has ordered the Homeland Security Investigations (HSI) unit to “quadruple to quintuple” the current number of routine workplace investigations of U.S. employers in the coming year. While the Trump administration’s immigration enforcement efforts have thus far mostly focused on undocumented individuals, the goal of ICE’s new strategy is to target employers. In particular, these workplace investigations will focus on audits of employers Employment Eligibility Verification, Forms I-9 and other employment records to determine whether employees (be they U.S. citizens or foreign nationals) are lawfully work authorized.
ICE’s plan to ramp up worksite investigations increases the risk of significant civil penalties and possible criminal prosecution for employers who fail to comply with U.S. employment laws. Additionally, business owners, executives, and Human Resources staff may personally face increased risk for simple Form I-9 “paperwork” errors.
All U.S. employers must complete a Form I-9 for all of their employees in order to verify their identity and work authorization. An employer who fails to properlycomplete and retain a Form I-9 for each and every employee, faces fines and penalties ranging from $539 to $2,156 for each paperwork violation. Therefore, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules. In particular, employers should:
- Review current I-9 policies and practices with qualified counsel. This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
- Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations. For example, store an employee’s Form I-9 separate from other personnel records and separate current from terminated employees;
- Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms. Only certain I-9 deficiencies can be mitigated, but must be done accurately so as not to make deficiency worse;
- Develop, implement, and maintain compliance policies for worksite raids and for managing CE Fraud Detection & National Security (FDNS) visits for nonimmigrant visa employees.