Increased Emphasis on Worksite Compliance and Enforcement

Along with the shift in focus to employers, the enforcement pace continues to increase under the Obama administration, which vowed to aggressively pursue employers. In 2008, ICE made 1,103 criminal arrests related to worksite enforcement. Of the individuals arrested for criminal violations, 135 were owners, managers, supervisors, or human resource employees. Moreover, as the federal government remains stalled in its efforts to pass comprehensive immigration reform, states have stepped in to fill the void.

According to the National Conference of State Legislatures, as of November 16, 2007, at least 1,562 immigration-related bills were introduced in various states, and approximately 244 of those bills became law. The volume of state immigration-related bills continued to increase in 2008. As of June 30, 2008, 1,404 immigration-related bills and resolutions were considered, and 182 of these bills became law. As expected, many of the state-sponsored bills target employers failing to properly verify the employment eligibility of their workforce.

The following statistics announced at the DHS symposium demonstrate increased ICE enforcement activities since April 30, 2009:

• 45 businesses and 47 individuals were debarred; no businesses and one individual were debarred during the same period in FY 2008.
• 142 Notices of Intent to Fine (NIF) totaling $15,865,181 were issued; ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008.
• 45 Final Orders totaling $798,179 were issued; ICE issued 8 Final Orders totaling $196,523 during the same period in FY 2008.
• 1,897 cases were initiated; ICE initiated 605 cases during the same period in FY 2008.
• 1,069 Form I-9 Inspections were conducted; ICE initiated 503 Form I-9 Inspections in all of FY 2008.

Of the more than 85,000 Form I-9s reviewed in connection with the 652 audits announced in July 2009, ICE agents identified more than 14,000 suspect documents, or about 16 percent of the total number of I-9s reviewed. As of November 19, 2009, 61 Notices of Intent to Fine (NIF) had been issued, resulting in $2,310,255 in fines. In addition, another 267 cases are being considered for additional NIFs. ICE closed 326 cases after the businesses audited were found to be in compliance with employment and immigration laws or after businesses were served with a warning notice in expectation of future compliance.

Employers must keep abreast of all these changes to assure compliance with both federal and state laws. Greenberg Traurig can assist employers in mitigating civil and criminal liability, and improving compliance with the many regulations, including I-9 compliance, H-1B audits, Social Security Administration mismatch letters, E-Verify, and the applicability of the newly-evolving state laws and investigations. Please contact a GT attorney for further assistance.

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