The new worksite strategy of Immigration and Customs Enforcement (ICE) shifts the focus from employees to employers. ICE’s new priority is criminal prosecution of employers for immigration violations.


Gone are the days of I-9 audits resulting in fines and cease and desist orders. Auditors are well-trained investigators, many with backgrounds in law, law enforcement and accounting. In an ICE strategy memo, auditors are encouraged to use a wide range of methods to look for evidence of “harboring, identification document fraud, money laundering and other criminal conduct.”


In a memorandum, Brett Dryer, ICE Worksite Enforcement Unit Chief stated, If we go to a worksite, it is in the context of criminal investigation of the employer. If we arrest (undocumented) workers, it is in support of the criminal investigation of the employer…and to get statements from the workers to support the conviction. This statement clearly targets employers.


ICE has officially targeted over 3,000 employers from all industries since April 30, 2009. President Obama reinforced the focus on employers in his immigration reform speech on July, 2010. He stated, We’ve already begun to step up enforcement against the worst workplace offenders. And we’re implementing and improving a system to give employers a reliable way to verify their employees are here legally.


Shortly after President Obama’s speech, the U.S. Department of Homeland Security (DHS) published a final rule on the electronic signature and storage of I-9s, which took effect August 23, 2010. A few clarifications are important to note:

• Must complete the I-9 within three business days
• Must create an audit trail whenever the I-9 is created, completed, updated, modified or corrected
• May use paper, electronic systems or a combination of both
• Must provide a confirmation of the I-9 if the employee requests a copy
• Only pages of the I-9 with entered data need to be retained
• Employers are not required to retain copies of documents used to verify identity and eligibility to work.

Employers are required to physically examine any documentation provided by the employee in the presence of the employee prior to completing the I-9 regardless of what preparation and storage method is used.


Properly preparing and storing I-9s is no longer enough to fend off potential ICE investigators. Employers should review ICE’s best practices and establish procedures to respond to no-match letters, employee tips and other potential violations. A policy to avoid unlawful discrimination with identity documents should be written. In addition, anyone responsible for preparing and storing I-9s should be trained annually; and the training should be documented.

IMAGE is an option

http://www.ice.gov/partners/opaimage/index.htm

ICE MUTUAL AGREEMENT BETWEEN GOVERNMENT AND EMPLOYERS


The program, initiated in 2007 promotes private sector business cooperation with ICE and includes a number of measures including electronic I-9 preparation, an I-9 audit by ICE, and a list of related protocol.


Another option is to review the protocol recommended by IMAGE and take a serious look at the way your business handles this function.



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