Think an ICE Audit or Raid Cannot Happen to You? Think Again

June 15, 2018

Think an ICE audit or raid cannot happen to you? Think again. In 2017, unauthorized worker arrests increased 30% over those made by ICE in 2016, hitting an all-time high. The biggest arrest numbers came from Florida, North Texas and Oklahoma. While business and legal professionals hoped the Trump administration would take a kinder, gentler approach to immigration enforcement, that has not been the case. During the Obama administration, ICE prioritized arrests to unauthorized workers with serious crime convictions; however, President Trump signed an executive order in 2017expanding ICE enforcement focus to unauthorized immigrants without criminal records. Arrests originating from the regional ICE office in Dallas were up 71% between 2016 and 2017, and it looks like 2018 will be a banner year. In early 2018, ICE Acting Direction Tom Horman advised that ICE raids were “likely to quintuple in 2018, targeting undocumented, noncriminal workers and their employers.” ICE recently issued a worksite statement that outlined the three-prong approach it is taking with enforcements: 1)compliance through I-9 inspections, civil fines and referrals for debarment; 2) enforcement through the arrest of employers knowingly employing undocumented workers and through the arrest of unauthorized workers; and 3) outreach through the ICE Mutual Agreement between Government and Employers (IMAGE) program, to instill a culture of compliance and accountability.

On its website, ICE showcases examples of employers gone wild. During a 2017 investigation of Asplundh Tree Experts Co. in Philadelphia, ICE found that the company engaged in a scheme to unlawfully employ aliens in which the highest levels of management remained “willfully and blind” while lower level management hired and rehired employees they knew were ineligible to work in the U.S. The company paid an $80 million fine – the largest judgment ever issued by ICE. In just the first six months of 2018 alone, ICE has made significant arrests in California, New Jersey, Texas, Florida, Tennessee, and Minnesota. In March of this year, ICE arrested 89 criminal aliens and immigration violators in North Texas and Oklahoma, most of whom had criminal records. While ICE continues to target criminal aliens, noncriminal workers are getting caught in the sweeps like the 114 unauthorized workers arrested at an Ohio garden center on June 6th.

As the saying goes, the best defense is a good offense. Employers must be proactive when it comes to ICE. Without using E-Verify, employers cannot be certain whether their employees are unauthorized to work in the U.S. However, participating in E-Verify comes with its own set of issues and risks, and is only required if a company is a federal or state contractor. By conducting its due diligence by visually inspecting documents presented at the time of hire, employers meet federal verification requirements. Employers can minimize the impact of a surprise I-9 inspection by conducting their own in-house audit of I-9 forms and making corrections. Additionally, employers must refrain from rehiring workers terminated for unauthorized status unless the worker has become authorized. If an employer has been audited once, it will be audited by ICE again; and employers found to “knowingly” hire unauthorized workers will be assessed criminal penalties as well as civil fines. It does not look like ICE is slowing down any time soon so employers must meet potential verification issues head on.

Contact our firm for more information on how to survive an I-9 inspection or conducting an in-house audit.