As reported by Politico.com, Immigration and Customs Enforcement (ICE) recently notified 1,000 companies in 50 states that they will be subject to an immigration audit wherein ICE inspects employers’ hiring records, e.g., Form I-9s and supporting documents. This latest round of notices brings the tally to more than 2,300 audits to date in Fiscal Year (FY) 2011 (October 1, 2010 to September 30, 2011), compared to a total of 2,196 during FY 2010.

Audits have been a central theme of the Obama administration’s immigration enforcement strategy. Immigration officials’ focus has shifted to employer, versus employee, noncompliance, the rationale being that the volume of illegal immigration will decrease if employers stop hiring undocumented workers. To prevent such hiring, enforcement agencies use their ability to impose civil and criminal penalties on employers.

In a recent article appearing in Corporate Counsel, Littler Shareholder Ian Macdonald observes that ICE is targeting specific industries: those that traditionally hire a large volume of undocumented workers, e.g., agriculture, construction; and others whose employees are privy to sensitive government information. He recommends that employers vulnerable to ICE inspections avoid fines by taking proactive steps such as:

• performing a self-audit;
• streamlining the Form I-9 process;
• implementing a record system allowing quick document production;
• correcting any deficiencies; and
• terminating undocumented workers.

Macdonald also notes that audits are less likely–and, in the event an audit occurs, punishment potentially less harsh–for companies with a record of government cooperation. For example, an employer’s enrollment in and use of the E-Verify program to authenticate individuals’ legal work status may be factored in by immigration enforcement officials during audits.

In the event of an audit, Macdonald recommends swift action using a three-phase approach:

• Phase 1: Review I-9 and payroll records, Social Security “No Match” letters, and cure deficiencies within three days.
• Phase 2: Build a rapport with ICE and cooperate with the agency.
• Phase 3: If a penalty is imposed, have counsel evaluate fines and attempt to negotiate down excessive penalties.

Photo credit: Aggressive Entertainment