Contributed by Sara Zorich, June 18, 2018
“U.S. Citizenship and Immigration Services” text with American flag in background
We have seen a major increase in 2018 of Form I-9 audits from the Immigration and Customs Enforcement (ICE). First we saw 122 companies audited in California in February 2018. Next, we saw a number of companies in the Chicagoland area and throughout the Midwest receive Form I-9 audits in March 2018. Then, just weeks ago ICE made a number of arrests in the Chicagoland area.
This increase in activity is not showing any signs of slowing. In fact, we anticipate I-9 audits to increase and are aware of ICE hiring additional agents in the Chicago area to assist in the increase of Form I-9 audits.
What should a company do in light of ICE’s increased audits?
First, you need to ensure that your employees responsible for the Form I-9 process understand the Form I-9 requirements. The Form I-9 has changed a number of times over the last couple of years and we are finding that those changes are not necessarily understood by employers. Make sure you are using the most recent form.
Second, you should audit your Form I-9’s, either on your own, or have an attorney assist you to help identify and correct technical Form I-9 errors. A self-audit before ICE arrives can assist in reducing your liability during an ICE audit.
Third, you need to have a plan if ICE audits your Form I-9’s. Your plan needs to include what to do the day ICE arrives along with what to expect from the audit process and potential ramifications on your business.
Contributed by Sara Zorich
On March 31, 2011, the US Department of Labor (DOL) and the Department of Homeland Security (DHS) entered into a Memorandum of Understanding (MOU) concerning enforcement activities at worksites. The purpose of the MOU is to clarify the ways in which the departments will work together to advance their directives of enforcement and to avoid conflict. The DOL is tasked with enforcement and assurance of proper wages and working conditions while the DHS enforces immigration laws including ensuring workers are authorized to work in the United States. Through the MOU, ICE has agreed to refrain from engaging in civil worksite enforcement at a worksite with an existing DOL investigation of a labor dispute, however, there are exceptions where both agencies can investigate at the same time if it is determined necessary by the Director of ICE, Secretary of Homeland Security or by an officer of the DOL. The purpose of this MOU is to reduce duplication of efforts between the departments. However, the MOU specifically states that ICE and DOL agree to create a means in which to exchange information from their respective investigations.
Though we will need to see how this is implemented, MOU appears to say that in most circumstances in which an employer is subject to a DOL investigation regarding minimum wage, FMLA, work related injuries, discrimination and/or retaliation, that the employer will not also be subject to an ICE civil audit at the same time. However, this MOU makes it clear that the DOL and ICE will be sharing information from their respective investigations and does not restrict ICE from investigating after a DOL investigation is complete. Therefore, if an employer is subject to an audit by one of the departments the information gathered during that audit may be shared with other government enforcement units.
The government’s actions make it clear that enforcement is still a key strategy of the administration and there are no signs of slowing. This is the time for employers to review their wage and hour policies and practices as well as their immigration polices and practices, including their I-9’s, to ensure compliance before ICE or DOL come knocking.