Immigration Law Insights

Immigration and Customs Enforcement (ICE) is planning a nationwide increase of Form I-9 audits this summer, and employers should prepare for the increased possibility of a government audit.

ICE is the federal agency responsible for enforcing the laws established by the Immigration Reform and Control Act (IRCA) of 1986, which requires employers to verify the identity and work eligibility of all individuals hired after November 1986 using the I-9 Form. According to an ICE recent news release, less than seven months after U.S. ICE Deputy Director Thomas Homan issued a directive that called for increased worksite enforcement investigations, the agency's Homeland Security Investigations (HSI) has already doubled the amount of ongoing worksite cases this fiscal year compared to the last fully completed fiscal year. Specifically, "from October 1, 2017 to May 4, 2018, HSI opened 3,510 worksite investigations; initiated 2,282 I-9 audits; and made 594 criminal and 610 administrative worksite-related arrests, respectively. In comparison, for fiscal year 2017 (running October 2016 to September 2017), HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement."

According to ICE, these heightened worksite enforcement efforts will continue to increase over the summer. In addition to this increase in worksite investigations, criminal and administrative arrests associated with workplace immigration laws have risen significantly as well. ICE intends to conduct up to 15,000 Form I-9 audits per year, to be completed by electronically scanning documents in a not-yet-created national inspection center.

In January 2017, ICE penalties for I-9 audits substantially increased for I-9 violations occurring after November 2, 2015. Employers should prepare for increased audits by conducting internal I-9 self-audits to ensure compliance and making sure employees responsible for I-9 and E-Verify compliance are well-trained and knowledgeable about the company's protocol in the event of an audit.