ICE Increases Number of Worksite Investigations and Form I-9 Audits

On May 14, 2018, the United States Immigration and Customs Enforcement (ICE) detailed recent worksite enforcement investigations [PDF version]. It stated that in accordance with a new directive from ICE Deputy Director Thomas Homan [see blog], ICE's Homeland Securities Investigations (HSI), ICE “has already doubled the amount of ongoing worksite cases this fiscal year compared to the last fully completed fiscal year.”

ICE provided the following comparison of HSI's worksite investigations from October 1, 2017 through May 4, 2018, and from the entirety of fiscal year 2017 (October 1, 2016 through September 30, 2017):

Worksite Investigations Opened

FY 2018 thus far: 3,510
FY 2017: 1,716

Form I-9 Audits Initiated

FY 2018 thus far: 2,282
FY 2017: 1,360

Criminal Worksite-Related Arrests

FY 2018 thus far: 594
FY 2017: 139

Administrative Worksite-Related Arrests

FY 2018 thus far: 610
FY 2017: 172

Thus, with five months remaining in FY 2018, ICE has already opened more worksite investigations, initiated more I-9 audits, made more criminal worksite-related arrests, and made more administrative worksite-related arrests than it did in all of FY 2017.

ICE explained that worksite inspections “are one of the most powerful tools the federal government uses to ensure that businesses are complying with U.S. employment laws.” Prior to undertaking a worksite inspection, ICE issues a notice of inspection to business owners. After such notice, the employer has three business days to produce their company's Form I-9s to comply with the I-9 audit. After such period, the ICE conducts its inspection for compliance. Employers that are found to not be in compliance with the laws may face civil fines and, potentially, criminal prosecution if they are knowingly violating the law. We have uploaded ICE's Form I-9 inspection overview page for your convenience: [PDF version]. Any workers encountered during these investigations who lack legal authorization to remain in the United States are subject to administrative arrest and removal proceedings.

Although laws regarding employment verification are unchanged, it is clear that ICE has stepped up its enforcement efforts. This means two things for employers of foreign workers. First, those violating U.S. laws regarding the employment of foreign workers may be more likely to be subject to scrutiny. Second, those who are otherwise following the laws must ensure that they are complying with all employment verification and associated record-keeping requirements in the event of an ICE inspection.

Those with questions about employment-verification should consult with an experienced immigration attorney in the area of employing foreign workers for case-specific guidance and information about showing compliance with applicable laws to ICE.