Subject to Inquiry: White Collar, Congressional, SEC, Energy Enforcement & Other Government Inquiries

After months of anticipation, the Senate “Gang of Eight” introduced their immigration bill – the "Border Security, Economic Opportunity, and Immigration Modernization Act" (S. 744) – in the U.S. Senate on April 17, thereby sending the debate on comprehensive immigration reform into full swing.  Set aside for a moment a discussion of the pros and cons of expanding our nonimmigrant visa programs, providing a path to citizenship for the 11 million illegal immigrants currently living in our country, and building massive fences and using unmanned drones to secure our borders.  More to come on those topics later.  For now, one thing is certain – E-Verify will be mandatory for all employers in the near future.

S. 744 mandates that all employers use E-Verify and includes a phase-in period that ranges from 90 days to 4 years based on the type of employer and the number of employees.  Failure to verify work authorization through E-Verify after the mandatory enrollment date raises a presumption that the employer knowingly hired an unauthorized worker. 

                Not only is mandatory E-Verify a part of the Senate comprehensive immigration reform bill, but it is also the subject of numerous other bills recently introduced in Congress.  For example, H.R. 478, introduced in February, makes E-Verify permanent and mandatory and requires every person who hires one or more employees to use E-Verify.  S. 202, introduced in January, expands the use of E-Verify and, among other things, requires employers to check the status of current employees within 3 years and allows employers to run a candidate through E-Verify as part of the application process.  Currently, employers (except certain federal contractors) are prevented from using E-Verify for their current workforce and may not use E-Verify until after they have offered, and the candidate has accepted, a job. 

In addition to the introduced bills mandating E-Verify, the program already has funding.  In March, Congress granted USCIS an additional $111 million dollars to fund the E-Verify Program which indicates the importance Congress places on the E-Verify Program and signals that E-Verify is here to stay regardless of if and when comprehensive immigration reform occurs.

As of February 2013, more than 430,000 employers had enrolled in E-Verify.  If you are already using E-Verify as part of your immigration compliance program, consider yourself ahead of the curve.   If you are not yet using E-Verify, it is only a matter of time.

USCIS published a notice in the Federal Register this morning announcing the long-awaited new Form I-9.  Employers can begin using the I-9 immediately (or as soon as USCIS posts it to their website), but must implement the new Form I-9 by May 7, 2013 at the latest.  During the 60-day grace period, employers may continue to use the current versions of the Form I-9 (2/2/09 and 8/7/09 versions).

As discussed in our previous blog, the new Form I-9 is expected to have a much different format including two pages, with a more organized, intuitive layout separating the information employees must provide from the information employers must complete.  The new Form I-9 also incorporates additional data fields, including the employee’s foreign passport information (if applicable), telephone numbers and email addresses.  In addition, the new Form I-9 carries with it six full pages of instructions.

Although the documents acceptable for Form I-9 purposes remain the same, the new Form I-9 is expected to revise the format of the Lists of Acceptable Documents (page 9 of the proposed Form) to clarify the requirements for certain documents.  For example, under List C, the new Form will specify the restrictions that may appear on a social security card that would render it unacceptable for List C purposes. 

Rather than immediately circulate the new Form I-9 to its HR team and require its use, we recommend that employers use the issuance of the new Form I-9 as an opportunity to conduct comprehensive Form I-9 training (if it has not already been done within the last year), or to provide refresher training (if comprehensive training has been done within the last year), to those responsible for completing the Form I-9.  It is critical that employers understand the nuances that go along with the Form I-9 process and the changes to that process that the new Form I-9 requires.  I welcome the opportunity to discuss them with you and get your thoughts on the issue.

The federal government spent more on immigration enforcement in 2012 than on all other federal criminal law enforcement combined.  A recent nonpartisan report from the Migration Policy Institute notes that the federal government spent $18 billion on immigration-related enforcement programs, an amount far greater than the combined budgets of the FBI, ATF, DEA and Secret Service (in fact, nearly $4 billion more).  According to the report, “[j]udging by resource levels, case volumes, and enforcement actions, . . . immigration enforcement can thus be seen to rank as the federal government’s highest criminal law enforcement priority.”  Further, according to the report, immigration-related referrals for prosecution from CBP and ICE outnumber referrals by the DOJ.

Some have questioned the report’s main findings noting that CBP and ICE also spend significant resources conducting non-immigration related enforcement such as screening cargo at the nation’s ports and detecting counterfeit goods.  However, even after accounting for resources spent on cargo and goods, the statistics are no doubt staggering.  In addition, resources spent by other agencies involved in immigration-related enforcement are not included in the $18 billion figure (for example, USCIS, DOL, and DOJ OSC, not to mention state resources directed to immigration-related enforcement).  There is no question that there has been a significant increase in immigration enforcement in recent years.  Between 2005 and 2012, ICE’s funding alone increased from $3 billion to nearly $6 billion.  There is also no question that the level of  immigration enforcement seen in recent years will only continue.

Continued Enforcement Aimed at Employers (more Form I-9 Inspections).  As the country patiently waits for comprehensive immigration reform, there is no doubt that the significant enforcement aimed at employers we have seen over the last few years will only increase in 2013.  All employers across the country, regardless of whether they employ foreign workers, should be on alert for immigration-related inspections and enforcement actions — especially employers associated with “critical infrastructure” or “key resources” sectors, which include the food industry.

E-Verify.   Be on the lookout for more states to mandate E-Verify for private employers in 2013, and E-Verify participation is expected to be a part of any comprehensive immigration reform.  In the meantime, employers in Georgia, North Carolina and Tennessee should pay particular attention to the upcoming 2013 E-Verify participation deadlines in those states:

• Georgia
  • Employers with more than 99 employees: deadline has passed
  • Employers with 11-99 employees: July 1, 2013
• North Carolina
  • Employers with more than 500 employees: deadline has passed
  • Employers with 100-499 employees: January 1, 2013
  • Employers with 25-99 employees: July 1, 2013
• Tennessee
  • Employers with more than 199 employees: deadline has passed
  • Employers with 6-199 employees: January 1, 2013

All employers who have not yet implemented E-Verify or who have only implemented E-Verify in certain states should review the relevant states’ requirements to determine whether they need to revise their E-Verify participation. 

New Form I-9.  Last, but not least, in addition to the increased enforcement, USCIS is expected to issue a new Form I-9 within the next few months after two rounds of comment period in 2012.  Overall, the proposed Form I-9 de-clutters the Form I-9’s content and leaves less room for error in completing the Form I-9.  However, implementation of the new I-9 will require additional training and tweaks to existing electronic systems (if implemented). As a reminder, the proposal is still in draft form and employers should continue to use the current Form I-9 until any changes are made permanent.

In 2012, E-Verify requirements became effective in Georgia, Louisiana, South Carolina, Tennessee and Alabama.  Without a doubt, 2013 will bring more state E-Verify mandates for private employers, and E-Verify participation is expected to be a part of any comprehensive immigration reform.  In the meantime, employers in Georgia, North Carolina and Tennessee should pay particular attention to the upcoming 2013 E-Verify participation deadlines in those states:

• Georgia
  • Employers with at least 100 employees: deadline has passed
  • Employers with 11-99 employees: July 1, 2013
• North Carolina
  • Employers with at least 500 employees: deadline has passed
  • Employers with 100-499 employees: January 1, 2013
  • Employers with 25-99 employees: July 1, 2013
• Tennessee
  • Employers with at least 200 employees: deadline has passed
  • Employers with 6-199 employees: January 1, 2013

All employers who have not yet implemented E-Verify or who have only implemented E-Verify in certain states should review the relevant states’ requirements to determine whether they need to revise their E-Verify participation. 

With the beginning of 2013 right around the corner, many employers likely have immigration compliance on their radar screen.  The Obama Administration’s continued focus on enforcing the nation’s immigration laws by imposing stiff penalties on employers makes the likelihood that you will face an immigration-related inspection in 2013 great.  Will your Form I-9s and immigration compliance practices hold up under scrutiny? 

With the recent increase in immigration enforcement, significant penalties, and the potential for bad press, employers are well advised to create an immigration compliance program or give an existing program a facelift.

What better way to roll up your sleeves and get started than to focus on the Top 10 Must Haves for Immigration Compliance:

1. Form I-9 Audit – All employers should conduct a Form I-9 audit annually.  Be careful here—we highly recommend hiring outside immigration counsel with expertise in this area as the risk of incorrectly conducting an I-9 audit is great.  The Form I-9 is one of the most misunderstood federal government forms.  To ICE and the DOJ, the procedure and manner by which the Form I-9 is completed and audited is just as important as the information provided on the form.
2. Form I-9 Training – All employers should conduct annual Form I-9 training to ensure that those completing new I-9s and reverifying I-9s understand all the nuances involved with accurately completing a Form I-9.  Responding to an inspection by explaining that you were unaware of the Form I-9 requirements will not be favorable.
3. Immigration Compliance Training – In addition to Form I-9 training for employees responsible for the Form I-9, employers should conduct annual immigration compliance training for all relevant employees on the policies and procedures enacted or updated by the employer throughout the year.  Employers should also train all hiring managers and supervisors regarding their respective roles in immigration compliance and ensure that all managers understand the nuances of constructive knowledge and to whom they should report information that indicates an employee is not authorized to work in the United States.  Human Resources personnel should receive annual training regarding how to respond to such reports to ensure not only that the company avoids discriminatory conduct, but also that it appropriately investigates any information that might be considered constructive knowledge of the hiring or continued employment of an unauthorized worker. 
4. Form I-9 Document Retention and Storage – Employers should have a written document retention policy for Form I-9s and ensure that it is being followed.  Employers should also ensure that the Form I-9s are stored appropriately (i.e., separate from personnel folders and separated by current and former employees).
5. Electronic Storage and/or Electronic Completion of Form I-9s – If an employer has not already implemented electronic storage and/or electronic completion of the Form I-9, it might want to consider whether an electronic I-9 system might be appropriate.  If an employer has already implemented an electronic I-9 system, it should conduct an audit annually to ensure that the electronic system complies with all federal regulations.  Penalties imposed for violations caused by a faulty electronic I-9 system can be stiff.
6. Social Security No-Match Letters – Yes, these are still an issue.  Employers should ensure that they have a written Social Security No-Match Policy and that they have appropriately responded to any lingering Social Security No-Match letters.
7. E-Verify – All employers should review annually their relevant E-Verify requirements.  Federal contractors should review their contracts to ensure compliance with E-Verify requirements.  Private employers who have not yet implemented E-Verify or who have only implemented E-Verify in certain states should review the relevant states’ requirements to determine whether they need to revise their E-Verify participation.  Employers who have already implemented E-Verify or who have implemented E-Verify in certain states should conduct annual audits to ensure appropriate use of E-Verify and include E-Verify in their annual Form I-9 training.
8. Employer Sponsored Work Visas – If an employer sponsors employees for work visas, the employer should conduct an annual audit of its use of those visas.  Employers can run afoul of the stringent visa-related requirements by taking actions that many employers may not understand are wrong—for example, sending H-1B employees to unauthorized work sites or assigning responsibilities to H-1B employees that fall outside the visa’s approved scope.
9. M&A – Employers should ensure that their business team understands that corporate deals often have immigration consequences and that immigration must be part of their due diligence checklist.  Waiting for a deal to close before focusing on immigration compliance can put the surviving entity at risk for substantial penalties.
10. Contractors and Contracts – Employers should review their contracts with any contractor who supplies labor to the employer’s workforce to ensure that the contractor has appropriate responsibility for its own immigration-related obligations.  Employers should also review their vendor contracts to ensure that they are complying with their own immigration-related compliance requirements imposed by the contracts.  Some companies are beginning to impose immigration compliance requirements through their business contracts.

There is no doubt that immigration-related enforcement against employers has dramatically increased in recent years. The U.S. Department of Homeland Security (DHS) and its principal investigative arm, U.S. Immigration and Customs Enforcement (ICE), consider employers the “immigration magnet,” and to combat illegal immigration, they are focusing on the magnet.

Given the flood of recent enforcement actions, all employers across the country, regardless of whether they employ foreign workers, should be on alert for immigration-related inspections and enforcement actions, — especially employers associated with “critical infrastructure” or “key resources” sectors, which include the food industry.

ICE has stated that investigations involving “national security, public safety or those associated with our critical infrastructure and key resources sectors” will receive top enforcement priority. ICE has also said that it gives higher priority to investigations into unauthorized workers employed at “sensitive sites and critical infrastructure facilities” — such as airports, chemical plants and defense facilities — as they “could pose serious homeland security threats.”

What are the critical infrastructure and key resources sectors?

The Patriot Act defines “critical infrastructure” as the systems and assets “so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.” 42 USC § 5195c(e). Not surprisingly, DHS has identified the food, water and agriculture industries as being among 18 industries that compose critical infrastructure and key resources sectors.

What are the potential penalties?

The penalties for immigration-related violations can be painful and can include fines, debarment, asset forfeiture, prison time, corporate monitoring and indirect damage from lost productivity, attorneys’ fees and negative publicity. The loss of workers and other indirect damage can be great enough to cause the company’s demise. For example, after its 2008 immigration raid and the arrest of nearly 400 workers, Agriprocessors was forced to shut down and eventually filed for bankruptcy. Other charges and additional penalties can be tacked on to immigration violations for crimes like tax evasion, money laundering, bank fraud and false statements that stem from what began as an immigration-related investigation.

Recent penalties for immigration violations confirm that DHS is targeting employers in the food industry. In fact, some of the highest immigration penalties imposed to date, as noted below, are for companies in the food industry.

Recent Penalties for Immigration Violations in the Food Industry

Employers in the Food Industry who have not yet received a Form I-9 inspection should take the time now to prepare by consulting experienced immigration counsel to conduct a Form I-9 audit, review and revise their immigration compliance policies and procedures, analyze participation in E-Verify, and train those with immigration compliance responsibilities. 

The federal government’s increased scrutiny of employers for immigration-related violations does not stop at the employment verification process.  DHS, DOS and DOL have also ramped up efforts to investigate visa fraud.  

Visa Fraud by Improper Use of the H1-B Visa

Because the number of petitions filed with USCIS each year for H-1B visas far exceeds the limited number of those available, the H-1B visa has become quite valuable both to the alien worker and to many employers.  With increased value comes increased fraud, followed closely by increased enforcement. 

An H-1B visa permits a qualified alien worker to work temporarily in the U.S. in a specialty occupation.  However, the H-1B visa also carries with it stringent requirements, including certain educational and professional requirements for the worker and certain obligations regarding the type of work and wage offered by the employer.  Employers can run afoul of these stringent requirements by taking actions that many employers may not understand are wrong – for example, sending H-1B employees to unauthorized work sites or assigning responsibilities to the H-1B worker that fall outside the visa’s approved scope.

DHS and DOL have increased unannounced site inspections of employers of H-1B workers, seeking to verify the working conditions and specifications stated in the visa petitions.  Inspectors usually speak to company officials and the H-1B visa worker, as well as review relevant documents.  Employers must ensure that their statements in a visa petition accurately reflect the details of the position and the qualifications of the foreign worker who fills that position.

Penalties for improper visa use can include criminal ramifications, payment of back wages, loss of the ability to sponsor future workers and significant civil monetary penalties.  For example, the DOL Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation.   

Visa Fraud by Improper Circumvention of the H-1B Visa

Recent enforcement efforts have also focused on attempts to circumvent the stringent H-1B visa requirements and cap by improperly substituting other less expensive and more readily available visa options.  In particular, some employers have attempted to use the B-1 visa, which is only available for business-related travel to the U.S. – not for working here. 

India’s three largest IT firms (Infosys Technologies Limited, Larsen & Toubro InfoTech, and Tata Consultancy Services) have recently come under scrutiny for alleged visa fraud.  At least one of these companies (Infosys) is facing criminal investigations by the DHS and DOS, and a DHS Form I-9 audit for which it has acknowledged that “DHS has found errors in a significant percentage of [their] Forms I-9.” 

In light of the increased enforcement directed at H-1B employers and because of the unique and often extensive requirements of each visa category, employers should consult with experienced immigration counsel when petitioning for business-related immigration visas.  In addition, employers should review their immigration compliance program for visa compliance safeguards. Some important questions to ask include:

• How does the company determine when and how it will sponsor employees for work authorization?
• Who is responsible for determining the appropriate visa to use for those employees?
• Is the company using the right visa for the employees it has chosen to sponsor?
• Once a visa is obtained, who monitors the sponsored employees’ work to ensure it complies with the visa petition?
• Have the responsibilities, pay or work location for any sponsored employees changed over time?

Given the increased enforcement aimed at employers' immigration-related responsibilities, companies involved in various corporate changes should ensure that they include immigration compliance on their due diligence checklist.  Waiting until the deal has closed to focus on immigration compliance can put the surviving entity at risk for substantial penalties.  Not only can inherited immigration violations put the company at risk for enforcement actions at the federal level, they can also cost the company its business licenses at the state level, jeopardize the company’s ability to do business with other companies who look to immigration compliance when choosing their vendors, and leave the company facing lawsuits from its new employees for negligence in handling their immigration matters.

There are several immigration issues that can arise during a corporate change.  The risks will vary depending on the type of deal, the companies involved, and the employees at issue.  Corporate changes that may have immigration consequences can include stock or asset acquisitions, mergers, consolidations, spin-offs, corporate name changes, changes in payroll source, and the relocation of an employer or its employees.

While it is best to seek assistance from experienced counsel, the following general guidelines provide a helpful roadmap to get you started.

What is the state of the existing Form I-9s?

Employers who acquire or merge with another company and retain some or all of the acquired company’s employees have the choice of two options for fulfilling their Form I-9 obligations for the new employees:

1. Treat all newly acquired employees as new hires and complete a new Form I-9 (even if the individual’s original hire date was on or prior to November 6, 1986); or
2. Adopt the Form I-9 created by the prior employer (so long as the employee will be continuing his or her employment).

Each option carries its own pros and cons and the best option depends on a number of factors including the employer’s size, industry, prior ICE enforcement activity, type of deal and, most importantly, the state of the existing Form I-9s. 

Regardless of which option the employer elects, it is a good idea to conduct a Form I-9 audit during the due diligence period of the deal.  Taking time to evaluate the predecessor’s Form I-9s will not only reduce the risk of assuming immigration compliance liabilities, but will also provide valuable insight on the potential costs and time that post-merger compliance will require. 

If the employer elects Option 1, the employer must complete a new Form I-9 for all employees.  Obviously, this process may take considerable time and effort and the employer will want to ensure that personnel completing the Form I-9s have received recent Form I-9 training.  The employer will also want to ensure that it gives the new employees plenty of notice to bring in the requisite documents for the Form I-9 process.

If the employer elects Option 2, it needs to make itself comfortable with the state of the existing Form I-9s as the employer will be liable for any errors or omissions on the inherited Form I-9s. 

Does the predecessor entity have any employees with employer-sponsored work authorization?

Employers who sponsor employees for work authorization have obligations to report various employment changes that may result from a corporate change.  Further, because most work visas are employer specific, a corporate change could risk a foreign employee’s visa eligibility if not handled correctly. Whether and how the corporate change impacts an employee’s visa status depends on the type of corporate change and the type of visa the employee holds.  While the requisite process is fact sensitive, a few examples highlight the various issues that can arise during a corporate change:

• If the predecessor entity employs an H-1B visa holder, a merger or relocation may require the employer to file an amended H-1B petition and complete a new Labor Certification Application with USCIS. 
• If any of the entities involved are H-1B dependent, they are subject to additional USCIS requirements and scrutiny, and will require additional analysis during any corporate change. 
• If any of the entities have cap-exempt status, that status may be affected by a corporate change.  For example, if an employee’s original sponsor was a non-profit entity, the employee may have been exempt from the H-1B annual cap.  A merger that results in a for-profit entity could risk this exemption and the employee’s H-1B eligibility. 

Reducing the Risk

All companies considering a corporate change should add immigration compliance to their due diligence checklist.  Taking the time to investigate the predecessor’s immigration compliance prior to closing the deal will greatly reduce the risks and ensure a smooth transition for all employees involved.

I’d like to thank Emilie McNally, Summer Associate, for her contribution to this blog entry.

The Form I-9 is about to change again – are you ready?  On March 27, 2012, USCIS published a notice in the Federal Register soliciting public comments to their proposed 12^th revision of the Form I-9.   Comments are due today – May 29, 2012.

What’s New?

Substantively, the Form I-9 will not change much.  However, the proposed Form I-9’s format will be very different.  Since its debut in 1987, the Form I-9s instructions have continuously increased in length (currently three pages), while the form itself has remained a single page.  However, for the first time in I-9 history, USCIS’ proposal divides the form’s contents into two separate pages.  The proposed Form I-9 offers an organized, intuitive layout by separating employer and employee required information onto their own respective pages. 

The Good:

One word – guidance.  The proposed Form I-9 carries with it six full pages of instructions providing employers with much needed guidance.  For example, the proposed instructions provide a brief, but clear roadmap of the Form’s layout and employer retention requirements.  Additionally, Section 1 of the proposed instructions breaks down the employee instructions by each piece of information the employee will be asked to provide, in the order the Form I-9 asks for it.  Likewise, the proposed Form I-9 instructions for Sections 2 and 3 greatly assist the employer’s understanding of its responsibilities with regard to those Sections, including separate sections for initial verification and reverification or rehires.  The Section 2 instructions also provide much-needed clarity regarding documents presented by students or exchange visitors and use of the receipt rule. 

The format of the proposed Form I-9 also goes a long way to reduce confusion and the inadvertent failure to include certain information.  For example, the proposed Form includes specific digit placeholders for the various numbers required of aliens – i.e., the proposed Form provides space for a 9-digit Alien Registration Number. 

The proposed Form I-9 also revises the format of information provided in Section 2 regarding the documents presented such that it specifies that it requires issuing authority, document number and expiration dates (if applicable) for List B and List C documents.

The proposed Form I-9 also separates space to provide the employer’s business name from the employer’s address and specifically breaks out the address with space to provide street number and name, city or town, state and zip code.  Believe it or not, the employer’s business name and address on the current Form I-9 has been a significant source of error for many employers.

Although the documents acceptable for Form I-9 purposes remain the same, the proposed Form I-9 revises the format of the Lists of Acceptable Documents (page 9 of the proposed Form) to clarify the requirements for certain documents.  For example, under List C, the proposed Form specifies the restrictions that may appear on a social security card that would render it unacceptable for List C purposes. 

The Potentially Confusing:

The proposed Form I-9 does include two completely new fields for the employee.  The employee can opt to provide an e-mail address and phone number.  The proposed Form I-9 advises the employee that although the information is voluntary, it “may assist DHS in contacting you regarding verification of your employment authorization.”  The fields may trigger additional employee questions (personal or work email? day or evening phone?).  In addition, employers should note the ease with which DHS or DOJ could contact employees directly to discuss the employer’s immigration compliance procedures.  Email and phone numbers make direct employee contact all the more likely than before. 

The Bottom Line:

Overall, the proposed Form I-9 de-clutters the Form I-9’s content and leaves less room error in completing the Form I-9.  As a reminder, the proposal is still in draft form and employers should continue to use the current Form I-9 until any changes are made permanent. 

I’d like to thank Emilie McNally, Summer Associate, for her contribution to this blog entry.

Clients often ask, “What’s the risk of not complying with immigration law?” In essence, what they’re asking is how much it will cost if they don’t get it right.  So, I thought it might be helpful to look at some recent immigration-related penalties to illustrate what’s at stake.

The penalties will of course be fact-dependent, and, as you know, the good faith of the employer can have an enormous impact, but generally speaking, sentences for employers range from up to six months in prison for knowingly hiring an illegal worker to 10 years for harboring one.  Also, other charges and additional penalties can be tacked on for crimes like tax evasion, money laundering, bank fraud and false statements that stem from what began as an immigration-related investigation.  Immigration violations also carry significant civil fines of up to $16,000 per worker.

But jail time and fines are not the only significant penalties.   Asset forfeiture, debarment, and reinstatement requirements can also be added on, and there is also the indirect damage from lost productivity, attorneys’ fees and negative publicity.

To put these penalties in real terms, see these examples from recent cases:

Given the increased focus on employers’ immigration-related compliance efforts, many companies are conducting Form I-9 audits.  While all companies are well-advised to conduct a Form I-9 audit annually (or immediately if one has not been conducted within the last year), conducting one without the relevant expertise can do more harm than good.  My favorite and therefore often repeated phrase regarding immigration compliance is, “Form I-9s are complex.”  That bears repeating in bold – Form I-9s are complex.       

Form I-9s are one of the most misunderstood federal government forms.  The form is not a simple linear document with blanks that need to be filled.  Rather, the Form I-9 is an interactive process with numerous rules (most of which do not appear on the face of the form) that must be followed.  To ICE and the DOJ, the procedure and manner by which the Form I-9 is completed is just as important as the information provided on the form.  And, it is the procedure and manner by which a Form I-9 is completed that most often gets employers into trouble (e.g., Abercrombie & Fitch settlement). 

As a result, employers can get themselves into a heap of trouble by trying to correct mistakes on the Form I-9 in an inappropriate manner.  For example, I’ve heard many times, “Why can’t we just populate the missing information from our HR system into Section 1 of the Form?” (only the employee can complete Section 1) or another one of my favorites, “The employee only completed List B and List C, but did not complete List A.  We need to call her in and have her complete List A” (employers should not accept more than the required documentation).  These procedural missteps could cost the employer significant penalties including, but not limited to fines, debarment and negative publicity.

Corrections to the Form I-9, like those described above, can make matters far worse for the employer than the original error.  As another example, some employers will correct a missing employee signature in Section 1 by creating a new Form I-9, often stating that the old Form I-9 is “out of date” and needs to be “redone.”  The employer then destroys the original Form I-9 leaving it no method to prove that it complied with the timing requirements of the Form I-9.  Further, the employer has just made it clear to ICE that not only was the employer not fully compliant with the Form I-9 procedure when that employee was hired (which may have been as early as 1986), the employer is even worse at it now – not a good position to be in. 

Unfortunately, these mistakes occur because most HR personnel responsible for the Form I-9 process have little to no formal training.  While lack of Form I-9 training is extremely risky in today’s enforcement environment, even more risky is allowing HR personnel to conduct an audit of their own work.  The use of independent, experienced auditors is key.

All employers should absolutely be conducting Form I-9 audits.  However, employers should tread carefully and ensure that they involve experienced immigration counsel in their auditing.  With the assistance of competent counsel, audits can play double duty and not only get existing Form I-9s in order, but also serve as an excellent training exercise for the employer’s HR personnel.

Next up in our review of states requiring private employers to participate in E-Verify – North Carolina and South Carolina. 

North Carolina

In June 2011, North Carolina enacted a law (North Carolina HB 36) requiring all state agencies, counties and municipalities to use E-Verify by October 1, 2011.  All other North Carolina employers must implement E-Verify by the following deadlines:

• Employers with more than 500 employees: October 1, 2012
• Employers with 100-499 employees: January 1, 2013
• Employers with 25-99 employees: July 1, 2013

The North Carolina law exempts seasonal temporary employees who are employed for 90 or fewer days during a 12-month period.  However, employers need to be careful with these state mandated exemptions.  In order to participate in E-Verify, employers have to sign a Memorandum of Understanding with the Department of Homeland Security which requires the employer to use E-Verify for all new employees and prohibits the employer from verifying selectively. 

The North Carolina law imposes civil monetary penalties for violations.

South Carolina

In June 2011, South Carolina enacted a law (South Carolina Act 69) requiring all employers to participate in E-Verify by January 1, 2012.  The new law removed the option of only hiring employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements) in lieu of using E-Verify.  The South Carolina law includes a grace period of one year for employers, during which penalties are probationary.  After the one year grace period, employers can face suspension of their business license.

The South Carolina law also requires private employers to maintain contact information for all of its subcontractors and sub-subcontractors performing services for the private employer and to provide such information pursuant to an audit or investigation within seventy-two hours of the request.

Like many other states, certain provisions of the South Carolina immigration law have been blocked from taking effect by a challenge in federal court (see United States v. South Carolina, No. 2:11-cv-2958 (D.S.C. December 22, 2011)), including a provision that requires law enforcement officers to check the immigration status of people they pull over for traffic violations.  However, the provisions regarding participation in E-Verify remain in effect.

As predicted in my May 2011 blog on the U.S. Supreme Court’s decision upholding Arizona’s E-Verify mandate, several states have followed suit and mandated E-Verify participation.  At the start of this year, E-Verify requirements became effective in Georgia, Louisiana, South Carolina and Tennessee, and all employers in Alabama must implement E-Verify by April 1, 2012.

The number of immigration-related bills introduced across the country in 2011 is astounding.  In 2011 alone, state lawmakers in all fifty states and Puerto Rico introduced over 1,600 immigration-related bills.  Of those bills, as of December 7, 2011, 42 states and Puerto Rico had enacted over 300 new immigration-related laws or resolutions.   

Of most importance to employers and businesses are the states that enacted laws in 2011 regarding E-Verify participation.  According to the National Conference of State Legislatures, 17 states now require E-Verify for public or private employers.   

While this list will not remain current for long, employers operating in at least the following states should pay attention to state E-Verify requirements:

• Alabama (passed in 2011) (effective April 2012)
• Arizona
• Colorado
• Florida (2011)
• Georgia (2011)
• Idaho
• Indiana (2011)
• Louisiana (2011)
• Mississippi
• Missouri
• Nebraska
• North Carolina (2011)
• Oklahoma
• South Carolina (2011)
• Tennessee (2011)
• Utah (2011)
• Virginia (2011)

While many states this year enacted laws requiring E-Verify use, a few states moved in the opposite direction.  In January 2011, Rhode Island repealed a 2008 executive order requiring use of E-Verify.  And, Minnesota’s 2008 executive order requiring some state agencies and contractors to use E-Verify expired in April 2011. 

E-Verify: Georgia

This blog is the first in a series to focus on individual states’ E-Verify requirements.  First up – Georgia. 

Effective January 1, 2012, E-Verify is mandatory for all employers with 500 or more employees in Georgia. (Georgia H.B. 87).  The Georgia law will eventually require all employers with more than 10 employees to use E-Verify.  The law kicks in for employers with 100-499 employees on July 1, 2012, and for those with 11-99 employees on July 1, 2013. 

Similar to those in the Arizona law (Arizona S.B. 1070), the penalties in Georgia include restrictions on the ability to get new or renew business licenses or other required business documents. 

1. EVERY employer has immigration-related compliance obligations.
2. Enforcement against employers has dramatically increased in recent years.
3. Enforcement has increased for violations associated with the H-1B visa program.
4. A Form I-9 Notice of Inspection (“NOI”) is not a “friendly audit” or “client review” – ICE considers the NOI an important tool in its enforcement strategy and employers should handle an NOI with the appropriate caution.
5. The following industries are high on ICE’s priority list for inspection: (a) critical infrastructure, (b) heavy manufacturing, (c) chemical plants, (d) defense contracting, (e) transportation, (f) janitorial, (g) food, (h) construction, (i) agriculture, (j) hospitality, (k)companies with large numbers of low skilled workers, and (l) companies that are potential targets for terrorist activity.
6. Penalties for immigration-related violations can be painful and can include: (a) financial sanctions (Abercrombie & Fitch - $1Million; Pilgrim's Pride - $4.5 Million settlement; IFCO Systems - $20.7 Million settlement); (b) debarment; (c) prison time; and (d) forfeiture of assets.
7. Any one Form I-9 can carry almost an infinite number of errors.
8. Employers can be penalized for Form I-9 paperwork violations regardless of whether or not they actually employed an unauthorized worker.
9. Participation in E-Verify alone is insufficient to satisfy an employer’s immigration compliance obligations – participation in E-Verify also triggers additional compliance requirements.
10. Employers should conduct a Form I-9 audit and training annually.

Most employers know it is against the law to hire or continue to employ an unauthorized worker in the United States.  However, company owners, executives and managers continue to be charged with a myriad of immigration-related offenses, including “bringing in and harboring certain aliens.”  Although harboring carries the most severe criminal penalties, it is also one of the most misunderstood immigration-related offenses.  So, just what does harboring include?

• transporting, moving, concealing, harboring or shielding from detection an alien with knowing or reckless disregard of the fact that the alien has come to or remains in the United States in violation of law.  8 U.S.C. § 1324.
• hiring illegal aliens, securing apartments for them, paying for rent and utilities, providing transportation to and from jobs, and maintaining counterfeit immigration documents.  U.S. v. Tipton, 518 F.3d 591 (8th Cir. 2008).
• providing shelter, obtaining employment, providing transportation to and from work, and arranging sham marriages for illegal aliens.  U.S. v. Lopez, 521 F.2d 437 (2d Cir. 1975). 
• failing to maintain Form I-9s for illegal aliens, advising illegal aliens where they can purchase fake documents and not including illegal aliens on payroll records.  U.S. v. Ye, 588 F.3d 411 (7th Cir. 2009). 
• falsifying information on the Form I-9 for illegal aliens, knowingly hiring illegal aliens who presented counterfeit documents and arranging for illegal aliens to fraudulently obtain security badges by falsely certifying information.  O’Hare Airport Staffing Agency
• providing housing, utilities and meals for illegal aliens.  Hi-Tech Trucking
• in response to the receipt of a Social Security No-Match letter (see May 16, 2011 Blog), advising illegal aliens to change their social security numbers in order to continue working at the company. Agriprocessors

What does harboring not include?

• merely giving an illegal alien advice on how to avoid attracting the attention of immigration authorities.  U.S. v. Ozcelik, 527 F.3d 88 (3d Cir. 2008).

The Circuits are split as to whether the conduct must “substantially facilitate an alien’s remaining in the United States” in order to be considered harboring.  According to the Third Circuit, harboring includes conduct that tends “to substantially facilitate an alien’s remaining in the United States illegally” and to prevent the authorities from detecting his or her unlawful presence.  United States v. Ozcelik, 527 F.3d 88 (3d Cir. 2008).  According to the Seventh Circuit, the Second, Fifth and Eighth Circuits have “explicitly” or “implicitly” taken the same position as the Third.  However, the Seventh Circuit has held that the relevant federal law does not require a specific quantum or degree of assistance to an illegal alien in order to constitute concealing, harboring or shielding.  U.S. v. Ye, 588 F.3d 411 (7th Cir. 2009).  “Congress could not have been clearer: it said that concealing, harboring, or shielding from detection an alien is unlawful conduct, regardless of how effective a defendant’s efforts to help the alien might tend to be.”  Id. 

Employers must focus on implementing, reviewing and auditing their immigration compliance programs, including their Form I-9 process.  Employers should also ensure that additional services such as housing, transportation, meals, and utilities are not provided to employees who are not authorized to work in the United States.

I’d like to thank Ashley B. Matthews, Summer Associate, for her contribution to this blog entry.

Last month the SSA began sending “no-match” letters to employers after a four year suspension as a result of DHS’s attempt to implement safe-harbor procedures for employers who receive a no-match letter.  Unfortunately for employers, although the no-match letters are being distributed again, there remains no consensus among the various government agencies regarding what employers are supposed to do with the no-match letters.

Here’s the breakdown:

• SSA
  • “A no-match between an employee’s name and SSN in the employer and SSA’s records DOES NOT mean that the employee lacks work authorization, nor does it make any statement regarding a worker’s immigration status.”  
  • The no-match letter itself also states that it does not imply that the employee intentionally provided incorrect information and that it is not a basis, in and of itself, to take adverse action against the employee
• DHS
  • “Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ‘constructive knowledge.’ A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information.  Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA.”
  • ICE routinely requests that employers provide copies of no-match letters as part of a Form I-9 audit.
• DOJ Civil Rights Division
  • Employers should not “[u]se the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against an employee.  Instead, employers should “[g]ive the employee a reasonable period of time to address a reported no-match with the local SSA office.”
• Anyone else care to chime in?

Where does this guidance (or lack thereof) leave employers? Employers cannot ignore no-match letters especially considering that no-match letters have formed the basis for multiple criminal investigations by ICE and prosecutions for harboring or knowingly hiring unauthorized workers.  However, employers cannot terminate employees based on the receipt of a no-match letter alone. Well, that clarifies it.

To make matters worse, approximately 1.6 million letters mailed by the SSA to employees included an incorrect Spanish translation that read, “Your employer may take action against you based on this letter,” rather than “Your employer may not take action against you based on this letter.” The SSA is still considering whether it will re-mail corrected letters to those individuals who received the incorrect Spanish translation.

Last week, Howard Industries, Inc., a manufacturer of electrical transmission and distribution equipment, pled guilty to conspiracy to violate immigration laws and agreed to pay a record $2.5 million fine.     

The plea comes approximately 2 1/2 years after an immigration raid on the company’s transformer manufacturing plant in Laurel, Mississippi, when nearly 600 people were arrested.  In addition, in December 2009, the company’s former HR Manager pled guilty to conspiring to violate immigration laws and admitted that he routinely hired people whom he knew were not authorized to work in the United States.  The HR Manager will be sentenced on Thursday, March 3, 2011 and faces a maximum of five years in prison on each count and a fine of $250,000.

According to the criminal complaint against Howard Industries, the company knowingly hired people unauthorized to work in the United States and, in the process, knowingly accepted false identity documents.  Specifically, the charge states that, as part of the conspiracy, the HR Manager:

• hired unauthorized workers presenting false identity documents and completed the I-9 Form with false information;
• submitted SSNs to the SSA to verify employees’ numbers and then disregarded the results if they came back as invalid;
• instructed employees to obtain alternative identity documents which he knew were false;
• falsely attested, under penalty of perjury, on the I-9 Form that he had examined the documents presented and determined them to be genuine; and
• assured Spanish-speaking workers that he would warn them of any possible immigration raids.

Clearly there was some wrong-doing on the part of the company, and this was not simply a case of an HR Manager gone rogue.  And of course, as the criminal complaint states, the company “is legally responsible for the actions of [the HR Manager] as his employer.”

So, what lessons can employers learn from Howard Industries?  How could Howard Industries have avoided this criminal fine, guilty plea, negative publicity and considerable litigation expense (including the additional recent lawsuits stemming from these actions)

A few suggestions for employers to ponder:

• Never allow one HR manager to be responsible for all employment actions and I-9 Form compliance.
• Conduct routine internal audits of I-9 Form compliance, including cross checks by more than one employee.
• Conduct routine internal reviews of the hiring process.
• Ensure the company is following the appropriate re-verification process for I-9 Forms.
• Conduct appropriate follow up in response to Social Security No-Match letters and IRS discrepancy notices.
• Ask experienced immigration counsel to conduct regular comprehensive I-9 Form audits.
• Know your workforce and do not turn a blind eye to when something seems amiss.

Although lately, much of the focus of immigration enforcement—and of this blog—has been on the hiring or continued employment of unauthorized workers, an employer’s exposure to immigration enforcement activity does not end there. 

On December 7, 2010, the U.S. Department of Labor (“DOL”) announced that Peri Software Solutions Inc. (“Peri”) and its owner have been debarred from the H-1B visa program for one year and ordered to pay $638,449 in back wages and interest and $126,778 in civil money penalties.  Pursuant to its consent order with the DOL, Peri must pay back wages for failing to compensate H-1B workers as required under DOL regulations, and civil fines for failing to provide notice of its intent to employ H-1B workers and for suing former H-1B workers “for early cessation of employment."

In August 2010, the DOL announced a nearly $1 million settlement with Smartsoft International Inc. (“Smartsoft”), a computer consulting firm based in Georgia, for back wages owed to H-1B workers.  According to the Wage and Hour Division’s determinations, some employees were not paid at the beginning of employment, were paid only part time despite full-time employment agreements, and were paid less than the prevailing wage applicable to the geographic area where the work was performed.  The DOL settled with the company after it contested these conclusions and requested a formal hearing.           

The Peri and Smartsoft cases illustrate a current trend of increased penalties and enforcement activity for violations associated with the H-1B visa program. Under the H-1B visa program, employers can temporarily hire foreign workers, such as computer programmers, engineers and financial analysts, in professional occupations.  However, the program carries very specific obligations, including pay rates and notice requirements.  For example, employers must continue to pay an H-1B worker even after employment terminates until U.S. Citizen and Immigration Services (“USCIS”) has revoked the H-1B petition.  In addition, the employer must notify USCIS when an H-1B worker’s employment ends.  An H-1B employer must also post notices at the place of employment regarding its intention to hire H-1B workers.  The Peri and Smartsoft cases serve as excellent reminders to employers that regulations governing the H-1B visa program are very detailed and failure to follow the rigorous obligations can result in significant penalties.

In fact, USCIS has stepped up its review of H-1B employers in the form of unannounced site visits at companies that file H or L petitions, focusing especially on those employers filing H-1B petitions.  In addition, the DOL has been conducting its own inspections, as the Peri and Smartsoft cases demonstrate. 

From an enforcement perspective, these complicated regulations and increased administrative audits make for a hot topic where companies should focus their compliance energy.  Now, more than ever, employing H-1B workers without a comprehensive immigration compliance program is risky business.

As if immigration law is not complicated enough, United States Citizenship and Immigration Services (USCIS) will now require employers filing Form I-129 (for H-1B, L-1 as well as H-1B1 Chile/Singapore, and O-1A petitions) to understand and certify compliance with the equally complicated export control laws.  The new Form I-129 Petition for a Nonimmigrant Worker requires employers to review relevant export laws, understand their applicability to the company and the role of the visa applicant, and certify, under penalty of perjury, that the employer has determined that no export license is required or, if a license is required, that the worker will not have access to covered technologies without first obtaining an export license. 

Although the new Form I-129 is effective today (December 23, 2010), late yesterday evening, USCIS suspended the certification requirement for 60 days until February 20, 2011 to allow employers additional time to develop the procedures necessary for compliance. 

Specifically, Part 6 of the new version of Form I-129 states:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

1. A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
2. A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

Before checking the box and certifying compliance, employers must first classify the technology or technical data that will be released to, or be accessed by, a prospective foreign national employee to determine whether an export license may be required.

Export classifications and licensing determinations can be complex.  An employer should discuss export control requirements with an in-house expert or counsel with expertise in export control law before making this certification as civil and criminal penalties may be imposed on both petitioners and their representatives for misrepresentations made on Form I-129.  Petitioners and their representatives should make sure that the Part 6 certification is accurate in every respect.

Under the EAR (15 CFR Parts 770-774), technology may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end-user and end-use.  Under the ITAR (22 CFR Parts 120-130), technical data generally related to defense articles may be subject to export licensing and other restrictions depending on the nature of the technology and the destination.  Both the EAR and ITAR treat the release of controlled technology or technical data to foreign nationals in the United States as an export – even if provided to them by their employer.  See 15 CFR § 734.2(b)(2)(ii)); 22 CFR § 120.17(a)(3).  Therefore, if an export license would be required to export EAR controlled technology or ITAR controlled technical data to a certain country, an export license would be required to disclose that technology or technical data to a foreign national of that country who is located in the United States.  This “deemed export” rule makes it critically important that employers who only do business within the United States understand that they may be engaging in the “export” of technology if they employ foreign nationals. 

Although export control law has not changed and the limitations on the release of controlled technologies and technical data to foreign persons in the United States have existed for many years, this is the first time that the USCIS has become involved in the export license process by requiring employers to make certifications regarding compliance with this process in their visa petitions.  As a result, companies that may not have considered export control issues will now have to do so.

This new requirement should also serve as a reminder to all companies that have technology or technical data subject to the EAR or ITAR to include a review of both their H-1B petitions and all I-9 Forms as part of the regular export compliance program to ensure that they are not running afoul of export controls by providing information to their own employees within the United States.

As companies across the country analyze whether or not to join E-Verify (a voluntary Internet-based system that electronically verifies the employment authorization status of newly hired employees), much of the concern revolves around whether E-Verify invites additional government scrutiny of an employer’s workforce and an employer’s immigration compliance program (or lack thereof).  However, one should also examine whether not participating in E-Verify might prompt additional government scrutiny.

To date, only 200,000 of the more than 6,000,000 employers in this country have opted to join E-Verify.  Some have had little choice for a number of reasons (e.g., certain federal contractors and participants in ICE’s IMAGE program must participate, as do other employers under state law requirements and settlement agreements).  Others have chosen to participate.  As more employers opt to join E-Verify, however, it raises the question whether there is a critical mass at which an employer’s decision not to participate in E-Verify will be considered an unreasonable business practice. 

The analysis of whether not participating in E-Verify invites additional government scrutiny begins with a closer look at the specific employer’s business and the likelihood of attracting unauthorized workers.  The following risk factors should be considered:

• size of employer
• type of industry (e.g., construction, janitorial, food, transportation, agricultural, critical infrastructure, defense)
• number of unskilled or entry-level positions
• location of facilities (border state or state with high number of illegal immigrants)

The more risk factors that apply to an employer, the more likely not participating in E-Verify will lead to increased government scrutiny.

With only 3% of employers in this country currently participating in E-Verify, it is unlikely that an employer’s decision not to participate will automatically prompt the government to take a closer look.  However, if ICE has information about two employers that would prompt it to begin an investigation and one of the two employers is participating in E-Verify, will ICE focus its attention on the non-participating employer first?  It is certainly a possibility.

Whether or not to join E-Verify is not an easy decision.  E-Verify is a voluntary (except for certain federal contractors and employers hiring in certain states) Internet-based system, operated by DHS in partnership with SSA, that electronically verifies the employment authorization status of newly hired employees.  To date, over 200,000 employers have chosen to participate in E-Verify.  E-Verify has also been the subject of numerous state laws – some requiring the use of E-Verify and others forbidding it (see blog dated June 2, 2010). 

In order to participate in E-Verify, each employer must sign a Memorandum of Understanding (MOU) with DHS.  On the one hand, E-Verify offers participating employers the comfort of a “rebuttable presumption … that the [e]mployer has not violated … the Immigration and Nationality Act (INA) with respect to the hiring of any individual if it obtains confirmation of the identity and employment eligibility of the individual in good faith compliance with the terms and conditions of E-Verify.”

However, this comfort comes with a price.  In addition to requiring that certain Form I-9 documents contain photographs and that the employer photocopy certain Form I-9 documents, the MOU requires that  an employer agree “to cooperate with DHS and SSA in their compliance monitoring and evaluation of E-Verify, including by permitting DHS and SSA, upon reasonable notice, to review Forms I-9 and other employment records and to interview it and its employees regarding the [e]mployer’s use of E-Verify, and to respond in a timely and accurate manner to DHS requests for information relating to their participation in E-Verify.”  Of course, under current law, an employer must already allow the government access to its Forms I-9, but not necessarily to employment records or to employees (or the employer) for government interviews.  Nor does the current law require employers to respond to DHS requests for information. 

In addition, the MOU provides that information given to DHS by the employer may be used “to enforce the Immigration and Nationality Act (INA) and Federal criminal laws.”  By participating in E-Verify, the employer is regularly providing information to the government it could use in a criminal investigation of the employer.  USCIS has also entered into Memoranda of Agreement (MOA) with ICE and the DOJ OSC (Office of Special Counsel for Immigration Related Unfair Employment Practices in the Civil Rights Division) for referring cases of suspected employer misuse of E-Verify and discrimination matters to ICE and the DOJ OSC.  USCIS will also provide those agencies with information regarding ongoing administrative and criminal investigations when requested.   

While for many employers, the rebuttable presumption offered by E-Verify far outweighs the additional administrative burdens and the risks that an invitation for closer scrutiny brings, all employers should fully understand what signing the MOU entails so as not to invite an unwelcomed guest.  I welcome any thoughts or comments on this subject.

Stay tuned for my next blog pondering whether not participating in E-Verify is also an invitation for the government to look closer …

ICE Director John Morton and DHS Secretary Janet Napolitano announced staggering enforcement statistics for the past year.  In addition to a record number of illegal alien removals for fiscal year 2010, since January 2009, ICE has

• conducted 3,200 audits of employers suspected of employing unauthorized immigrants;
• debarred 225 companies and individuals; and
• imposed $50 million in financial sanctions against employers.

Secretary Napolitano reiterated the Administration’s heightened focus on employers, noting the agencies’ approach “has yielded historic results . . . issuing more financial sanctions on employers who knowingly and repeatedly violate immigration law than during the entire previous administration.”

I hesitate to belabor the point, but ICE keeps providing additional opportunity to do so – the current enforcement focus is on employers – the “immigration magnet.”  Gone are the days when employers can get away with an “ah shucks, we just haven’t focused our compliance efforts on immigration” response to a Form I-9 audit.  Immigration compliance ought to be at the top of every employer’s radar screen.     

In 2005, ICE’s budget (pdf) was $3.56 billion.  For 2010, it is $5.74 billion (pdf) -- an increase of $2.18 billion!  In a time when most most budgets are decreasing, ICE’s budget has increased by 60% in 5 years.  That can only mean that immigration enforcement remains a priority for the federal government.  Like it or not, this means immigration compliance should be a priority in the boardrooms and conference rooms all across corporate America.

Coupled with the dramatic increase in budget is the formal policy of the Obama administration to go after employers who hire illegal immigrants rather than the mass arrest of illegal immigrants.  In a 2009 news release from DHS, the agency announced that Secretary Napolitano has “issued guidance outlining that ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.  ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities.  Furthermore, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.”  ICE recently reprioritized and focused its resources in worksite enforcement “on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.”

The arrest numbers speak for themselves.  With increased money comes increased enforcement. Since 2002, ICE has increased its annual criminal arrests by more than 1,000 and its annual administrative arrests by over 4,500.  The figures for 2009 are not available yet, but will likely be telling.  Based on enforcement strategies announced by ICE and the dedication of resources, the focus will likely be on increasing criminal arrest numbers.

If you haven’t focused on immigration compliance, now is certainly the time.