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The Immigration and Customs Enforcement agency, the enforcement arm of the U.S. Department of Homeland Security, announced in November that it had issued I-9 audit notices to 1,000 businesses. ICE says it is targeting employers that are associated with “critical infrastructure” and “public safety and national security,” but these “limitations” appear to be very broadly drawn.

In an I-9 audit, the employer is requested to submit Form I-9s, payroll records, payroll tax filings, W-2s and 1099s, Social Security no-match letters, and the like, so that the ICE can determine whether the employer is in compliance with federal employment eligibility laws. A finding of noncompliance can lead to fines and, in the case of “pattern or practice” violations, criminal penalties. Results from 654 recent I-9 audits, announced by ICE in July, reveal that about 16 percent of the total number of Form I-9-related documents reviewed were identified as “suspect.”

It’s been an active year for I-9 audits, and it signals the Obama administration’s departure from the Bush administration’s more restrained employment enforcement policy. According to an ICE news release issued last month, the agency has initiated nearly 1,900 cases since April 2009, approximately triple the 600-plus cases during the corresponding period in fiscal year 2008. Other statistics released by ICE reveal a dramatic increase in worksite enforcement activity – and employer penalties – as shown in the charts below:


Preventive Measures: What Your Business Can Do Now

In light of this unmistakable trend, employers are advised to prepare for the possibility of an I-9 audit, by reviewing their existing employment applications and hiring records for completeness, accuracy, and authenticity. A starting point to understanding the I-9 process is to review the DHS “Handbook for Employers” which is available for download at the U.S. Citizenship and Immigration Service website.

Employers also may want to consider strengthening their I-9 verification process by registering for the “E-Verify” program online. (To register, go to "Tools" on right side of screen and click "E-Verify Registration.") Participation in E-Verify is voluntary. E-Verify enables an employer, upon completing Form I-9, to access an automated response from the E-Verify system regarding the employment authorization of the individual, and to take appropriate steps toward compliance.

Constangy, Brooks & Smith offers significant experience in assisting employers with conducting internal I-9 audits, providing training in I-9 compliance and related immigration compliance issues, and in representing employers in government investigations. For assistance in these areas, please contact any member of Constangy’s Immigration Practice Group or the Constangy attorney of your choice.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Massachusetts, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit www.constangy.com


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