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February 26 2013

Immigration Audits of Employers Continue to Rise

By: Nathaniel R. Wolf

The U.S. Immigration and Customs Enforcement (“ICE”) audits hit a record high in 2012.  All indicators point to a new record in 2013.  Employer audits increased from 250 in fiscal year 2007 to more than 3,000 in 2012.  From 2009 to 2012, fines increased dramatically from $1 million to $13 million.  More than 238 company managers were arrested in 2012, according to ICE data.  The Obama Administration has pledged to continue its aggressive approach to ICE audits.  Indeed, all of the immigration reform packages currently being debated in Washington, DC include specific provisions for increased work authorization review and enforcement.

Penalties for substantive violations range from $110 to $1,100 per violation.  Penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end.  In determining the appropriate penalty, ICE considers five factors, “the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.”  Although all industries are susceptible to worksite investigations, industries that involve manual labor, which have traditionally hired a large number of immigrants, have reportedly been hit the hardest by ICE’s enforcement efforts.

Employers can minimize and possibly avoid significant liability by developing and enforcing an immigration compliance program before an ICE inspection is conducted.  At a minimum, compliance efforts should include implementation of an immigration compliance policy, annual audits (with an initial audit of 100% of the workforce I-9s), and incorporation of immigration compliance attestations in vendor contracts.  At the same time, employers should be aware of their obligation to avoid discriminatory employment practices.  Adherence to these efforts will provide a strong foundation for legal compliance and ultimately, a less stressful audit when ICE appears at your doorstep.

For employers who are still skeptical of the importance of being prepared for an I-9 audit, one need only look at the recent Abercrombie & Fitch example in Michigan.  Abercrombie & Fitch was fined over $1 million for I-9 deficiencies.  What was most alarming about the Abercrombie & Fitch fine was that ICE uncovered no unauthorized workers among the clothier’s employees.  The fine resulted from “numerous technology related deficiencies” in Abercrombie & Fitch’s system for carrying its I-9 obligations.  Even if an employer successfully avoids hiring unauthorized workers, it can still be penalized severely for its failure to properly maintain its I-9 records.

For more information on conducting I-9 audits and what to do if you are served with a notice of inspection, contact your immigration counsel at Mika Meyers PLC.  If you have any questions regarding this or any other employment law issue, please feel free to contact Nathaniel R. Wolf at 616-632-8046.