ICE Expands Worksite Enforcement Activities in the Southeast
On Tuesday, March 2, 2010, the U.S. Department of Homeland Security (“DHS”) announced that it was expanding its worksite enforcement strategy in the Southeastern United States. As part of this strategy, the U.S. Immigration and Customs Enforcement (“ICE”), the agency within DHS directly responsible for worksite enforcement, indicated that it is issuing Notices of Inspections (“NOIs”) to 180 businesses in Tennessee, Alabama, Arkansas, Louisiana and Mississippi.
These NOIs alert the businesses that ICE will be inspecting their Form I-9s and seeking to review voluminous other business records, including a list of current and terminated employees with hire and termination dates; the names, social security numbers and dates of birth of all active employees; quarterly wage and hour reports and/or payroll data on all employees covering the period of inspection; quarterly tax statements; all correspondence with the Social Security Administration (including “No-Match” letters); and more! All of this is an effort by ICE to determine whether the businesses are complying with federal employment eligibility verification laws and regulations. This DHS announcement is the latest in a series of expanding worksite enforcement efforts by the Obama administration. Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers.
Hector Chichoni, the Chair of EBG’s Southeastern Immigration Practice, notes: “this action by ICE underscores what the Immigration Law Group at EBG has been advising clients since the Obama administration took office. Businesses need comprehensive employment verification and related compliance plans in place because the civil and potentially criminal consequences of this enforcement strategy can be severe. Businesses that ignore this important aspect of their operations can face substantial fines that make compliance now not only good corporate citizenship, but also good risk management.”
These ICE inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area. This latest ICE action in the Southeast underscores the need for all businesses to review this important aspect of their operations, develop compliance plans that will protect them from this potential liability and have in place crisis management procedures, including access to outside counsel that specializes in this area, in the event that the “ICEman” cometh!
The U.S. Citizenship and Immigration Services ("USCIS") announced on August 27, 2009, that the federal Office of Management and Budget has approved an extension of the current Form I-9 to August 31, 2012. As a result, the USCIS has amended the Form I-9 to reflect an updated revision date of August 7, 2009. This revision date appears in the lower right hand corner of the form. .gif)
On July 2, 2009, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) launched a new and bold initiative to audit companies by issuing Notices of Inspection (“NOIs”) to 652 businesses nationwide..jpg)
businesses in New York, San Antonio, Seattle, and San Diego. ICE has also sent audit notices to 32 companies in Arizona. For a long time the government has been seeking new ways to impose E-Verify on all US employers. I believe the strategy behind these notices is to paint a picture of rampant immigration violations so, come September 2009, Congress will make E-Verify mandatory for every employer. For as much as the government loves E-Verify, it will never be a substitute for immigration reform or stop illegal immigration..jpg)
President Obama made it clear that his immigration plan was to “bring people out of the shadows, improve our immigration system, create secure borders, remove incentives to enter illegally and honor our immigrant troops.” However, the Obama administration has not provided any details as to how it is going to accomplish this plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama has sent out “immigration signals” and employers should be prepared to feel the effects.
watch the design of the operations and that the focus will be on “unscrupulous employers” rather than on undocumented workers. She also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers “of unlawful workers are prosecuted for their violations.” Moreover, Napolitano pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to “establish sound compliance programs that prevent unlawful hiring.” She also aims to continue boosting manpower on the borders and focusing on technology, such as ground sensors. At the same time, it is her full intention to enforce these methods in a fair manner across borders, ensuring that the law is applied.
On January 30, 2009, U.S. Citizenship and Immigration Services ("USCIS")announced that the effective date of the new Form I-9 (Employment Verification Form) has been delayed for 60 days, until April 3, 2009. 
On July 7, 2008, Missouri Governor Matt Blunt signed a bill, effective January 1, 2009, requiring employers contracting or receiving grants from the state in excess of $5,000 to use E-Verify. Missouri joins a growing number of states that, in the absence of a federal comprehensive immigration reform act, have chosen to regulate the employment of illegal workers. The Missouri bill shares similarities to other bills enacted in states such as: Colorado, Georgia, Minnesota, Oklahoma, Rhode Island, and Utah. However, this bill goes further by requiring employers with state-administered tax credits, tax abatement, or state-administered loans to also use E-verify. The 
bill also gives Missouri's Attorney General the authority to enforce the act. Missouri's Attorney General may now demand: 1) employers to provide identification information on their employees; 2) employers to provide identification documents within 15 business days of receiving such a request. Failing to abide by the request could result in the suspension of a company's applicable local licenses, permits, and exemptions until the documents are supplied, 3) employers to classify its employees correctly (i.e. knowingly classifying an employee as an independent contractor when he/she is not carries fines ranging from $50 to $50,000.) A contractor will not be liable for the unauthorized employment of an illegal alien if a subcontractor employing the individual provides a sworn affidavit that the employee is authorized to work in the US. Missouri's law does not substitute the federal requirement to complete Form I-9 Employment Eligibility Verification. 
EEVS, a deeply flawed program, is the core center of the “SAVE Act.” The SAVE Act was introduced in Congress in November of 2007 by Reps. Heath Schuler (D-NC) and Tom Tancredo (R-CO). .jpg)
According to the indictment, the federal authorities charged the three janitorial company executives of embezzling more than $18.6 million by failing to collect and pay federal income, Social Security, Medicare and federal employment taxes on the wages paid to its workforce, hundreds of illegal immigrants from Mexico, Central America, and Haiti. RCI allegedly hired illegal immigrants, paid them in cash and never required them to provide identification or fill out job applications or tax forms. .jpg)
Related to the notion of constructive knowledge, there appears to be a trend towards seeking employer liability even where its contractors or sub-contractors hire illegal workers. Current regulations state that an employer who knowingly or with reckless disregard contracts to obtain the labor of an unauthorized alien will be considered to have hired the employee. Incredibly, in terms of raids already conducted by ICE, in spite of the many industries targeted by ICE existing in our state (i.e. construction, agriculture, hospitality, retail, etc.) Florida has not been an “active” place. We do not hear much about ICE in Florida. But, just as RCI, simply put, employers should not make the mistake of assuming that ICE will not come and raid them. Employers should be prepared for when it comes. Our state has too many industries which are the focus of ICE’s interest. Given the focus on employer liability for hiring illegal workers, there are various ways employers can proactively protect themselves against not only government investigations and ensure compliance with potential new laws and regulations, but also from service providers who may be hiring undocumented workers. Employers cannot afford neglecting these important tasks. 