Written by attorney Gerald P. Goulder

Feds Record-Breaking I-9 Enforcement Policy Requires Employers Review I-9 Practices

U.S. Immigration and Customs Enforcement (ICE) Director John Morton recently announced what they described as record-breaking immigration enforcement statistics under the Obama administration worksite enforcement program.

Since January 2009, ICE has audited more than 3,200 employers suspected of hiring illegal labor, debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions-more than the total amount of audits and debarments than during the entire previous administration.

While most of DHS’ and ICE’s emphasis has been on the arrest and deportation of criminal aliens, Department of Homeland Security Secretary Janet Napolitano said that the Obama Administration would continue to hold employers accountable through the use of tools like I-9 audits, fines and debarments.

ICE has increased its worksite enforcement activities. This year alone, Immigration and Customs Enforcement (ICE) has already conducted over 2,900 I-9 audits and issued more than $3 million in fines and penalties. Just last week, ICE issued an additional 500 I-9 audit notices throughout the U.S.

DHS and Ice have stated they plan to continue if not increase aggressive enforcement against employers.

Penalties from worksite enforcement inspections have increased five-fold in Fiscal Year 2010 due in large part to increased employer scrutiny and several waves of I-9 audits. The Bureau of National Affairs (BNA) reports that penalties from worksite enforcement inspections increased five-fold in Fiscal Year 2010 (which runs from October 1, 2009 to September 30, 2010).

ICE Activity




Form I-9 Inspections




Criminal Arrests




Final Orders








Summary of ICE fines and penalties statistics:

· ICE criminally charged a record-breaking 180 owners, employers, managers and/or supervisors — up from 135 in FY 2008 and 114 in FY 2009.

· ICE conducted more than 2,200 I-9 audits — up from more than 1,400 in FY 2009.

· Since January 2009, ICE has imposed approximately $50 million in financial sanctions.

· ICE debarred 97 business and 49 individuals in FY 2010, up from 30 and 53, respectively, in FY 2009.

I am asked all the time by clients and prospective clients: “How does ICE target employers for Form I-9 inspections?"

Although ICE certainly does not reveal how they target employers, generally ICE employer I-9 investigations grow out of a credible lead: a complaint from disgruntled employee; a tip from the public; or, cases having national security or public safety implications (e.g., employers at airports have been known to be targets).

ICE also initiates I-9 audits based upon referrals from other government agencies that may have investigated an employer in an unrelated matter, including State and Federal Department of Labor Wage and Hour Division investigations. Lastly, ICE has also been known to target certain employers, most notably those in construction, hospitality, retail and other industries with high turn-over and frequent reports of undocumented workers.

Employer’s Must Manage Their Forms I-9 Risk

Employer’s must regularly review their Forms I-9 compliance practices, training, and conduct internal self-audits of their I-9s.

Employers should generally consider the following as a starting point when developing your company's I-9 employment verification program.

  1. Do you perform voluntary audits of all or a representative sample of retained I-9s to measure compliance practices?

  2. Have you established a tickler system for the timely re-verification of employment eligibility for foreign-national employees who have time-limited work authorization?

  3. Do you take prompt action if notified by the Social Security Administration that a discrepancy exists between employer-provided records on specific workers and the SSA's own data (the so-called SSA "no-match letter")?

  4. What kinds of files do you maintain in your I-9 records?

  5. Do you participate in the Basic Pilot Program (now E-Verify) or the IMAGE program?

  6. Have you set up a system for handling future I-9s?

  7. Do you make sure all new hires complete I-9s in person before a company official (in order to confirm identity) or an authorized agent (with respect to whom the employer must take full responsibility for any I-9 mistakes or omissions)?

  8. Do you engage in regular training for employees handling I-9 completion?

  9. Do you have an internal training program, with annual updates, on how to manage completion of Form I-9 (Employee Eligibility Verification Form), how to detect fraudulent use of documents in the I-9 process?

  10. Do you conduct annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 and electronic verification process?

  11. Do you have a self-reporting procedure for reporting to ICE any violations or discovered deficiencies?

  12. Do you have a Tip Line for employees to report activity relating to the employment of unauthorized aliens, and a protocol for responding to employee tips?

  13. Have you established policies (in consultation with employment law counsel) for future compliance and ongoing voluntary audits?

  14. Do you have a policy on how to handle ICE on-site appearances, worksite enforcement or Wage and Hour inspector visits?

  15. Do you have a designated person to meet enforcement personnel when ICE comes on site?

  16. Is there a set chain of command for responding to ICE worksite enforcement?

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer