According to an article on SHRM’s website (sorry you have to be a member to read this one) U.S. Immigration and Customs Enforcement (ICE) issued notices to 652 businesses that they will be audited. In all of 2008 they only issued 503. So obviously they are stepping up activity. The agency is trying to build criminal cases against employers before they conduct raids. According to the SHRM article:
“As part of its shift in strategy, ICE is going after employers instead of undocumented workers, according to Mira Mdivani, an immigration attorney with The Mdivani Law Firm in Overland Park, Kan., in a July 7 interview.”
Apparently the targets of the investigations, which are widespread, were gathered from No-Match letter data, use of E-Verify, union instigation and other “investigative measures.” The agency is being secretive. According to the article “…ICE officials “refused to tell us how to define substantive violations of I-9s versus technical violations. We thought we knew, but they won’t tell us.” And ICE wouldn’t disclose the guidelines that are being used to fine employers, ….”
Mary Pivec, an attorney with Keller and Heckman in Washington, D.C. provided SHRM with the following list of items that ICE might be looking for on an audit.
- Original I-9s. Forms I-9 must be retained for three years after the date of hire or one year after the date of termination, whichever period is longer.
- A spreadsheet listing alphabetically all current and terminated employees with hire and termination dates in electronic form Word or Excel, non-PDF, including the names, Social Security numbers and dates of birth of each employee.
- Copies of quarterly wage and hour reports and/or payroll data for all employees—current and terminated—covering the period of inspection, as well as quarterly tax statements.
- Business information, including the employer identification number, taxpayer identification number, owner’s Social Security number, owner’s contact information (e.g., address, information, phone numbers and e-mail addresses), articles of incorporation (if applicable) and copies of business licenses.
- Copies of Social Security no-match letters.
- A copy of any I-9 policy.
- The name and responsibility of those who complete I-9 forms.
- The date the business was established, form of the business, where it is incorporated and its revenue.
- The department or job titles of employees.
- Quarterly unemployment insurance reports with the state or quarterly returns for Federal Income Contributions Act taxes.
According to the article and the attorneys HR needs to own this process. My experience has been that too often forms are incomplete because HR does not own the process. And since this is a law that can result in jail sentences great care needs to be taken in completing the information on this form.
The advice in the article is “Designate a lead person to spearhead immigration compliance at the company and adopt an immigration compliance policy that incorporates recommended ICE best practices that make sense for your company, she recommended, and become thoroughly familiar with ICE’s I-9 handbook. Conduct annual immigration audits in cooperation with legal and provide annual training, keeping the big picture clearly in focus as enforcement strategies and laws change. That way, instead of scrambling after receiving an I-9 audit notice, Mdivani said, a company will be prepared.”
So, depending on what your company does, what your history has been like and how you have things set up you may have a lot of work that needs to be done. But I hope this makes you sit up and pay attention.