The recent raids of dozens of 7-Eleven stores by U.S. immigration agents and the corresponding arrest of 21 individuals for immigration-related violations were widely covered as the largest immigrant enforcement crackdown undertaken by the Trump administration to date. Importantly, the raids also focused renewed attention on the importance of immigration compliance and the increasingly active role played by U.S. Immigration and Customs Enforcement (ICE), which, according to its acting director, Thomas Homan, will increase the amount of time spent on worksite enforcement actions “by four or five times,” consistent with the Trump administration’s stated goal of proactively curbing illegal immigration.
When announcing the agency’s increase in enforcement activity, Homan also signaled a marked change in agency posture, noting that ICE will detain and possibly remove undocumented employees in addition to prosecuting employers for knowingly hiring or retaining workers who lack valid U.S. employment authorization.
ICE’s promised increase in worksite enforcement actions and the agency’s renewed focus on apprehending undocumented workers while also prosecuting the employers who knowingly hire such individuals underscore the importance of proactively implementing proper Form I-9 completion and vetting procedures during the on-boarding process. Importantly, it bears noting that ICE is empowered to prosecute employers for both “actual” and “constructive” knowledge, the latter of which is difficult to define and subject to interpretation. In addition, employers are advised to work with experienced counsel to conduct periodic immigration compliance training and internal audits to identify and address potential workforce challenges before being confronted with an ICE audit.
Pursuant to the Immigration Reform and Control Act (IRCA) and Section 274A(b) of the Immigration and Nationality Act (INA), codified in 8 U.S.C. Section 1324a(b), employers must verify the identity and U.S. employment authorization of all employees hired in the U.S. after November 6, 1986, and may face civil and criminal penalties for employment-related violations. To document compliance with the verification requirement described above, employers must use the Form I-9, Employment Eligibility Verification Form. Moreover, IRCA prohibits employers from hiring or continuing to employ an individual while knowing that he/she is unauthorized for employment in the U.S.
Worksite enforcement audits of employers’ Form I-9 records are carried out by ICE. The administrative inspection process begins when ICE serves a notice of inspection (NOI) to compel the production of Forms I-9 and related materials, including but not limited to payroll records, a current employee roster, articles of incorporation, supporting document copies (if applicable), and E-Verify reports (if applicable). Under the applicable statute, employers have at least three business days to produce the requested records.
ICE reviews employers’ employment verification records for compliance with the statutory requirements described above, specifically technical Form I-9 violations (generally defined as errors that do not prevent a finding of authorized employment in the U.S.) and substantive violations (generally characterized as more serious deficiencies that preclude confirmation of valid U.S. work authorization). When technical violations are identified, the INA grants employers 10 business days to remedy the violations. However, substantive violations (as well as uncorrected technical errors) may trigger monetary fines, depending on factors such as the employer’s good faith, business size, employment verification history, the seriousness of noted violations, and the hiring of unauthorized workers, if any. The failure to produce a Form I-9 is regarded as a substantive violation. Additional civil penalties for violating the employment-related anti-discrimination provisions of the INA, enforced by the U.S. Department of Justice’s Immigrant and Employee Rights Section (IER), may also apply if an employer engages in impermissible citizenship status or national origin discrimination during the hiring, firing, recruitment, or referral for a fee process; document abuse during the employment eligibility verification, Form I-9, process; or retaliation or intimidation.
Worksite enforcement audits present numerous time-sensitive and legally serious issues. Accordingly, the service of an ICE NOI and/or an accompanying subpoena should always be taken seriously and addressed expeditiously. In addition, maintaining robust and proactive immigration compliance protocols and conducting periodic internal reviews of Form I-9 records in consultation with experienced counsel are critical components of ensuring legal compliance and staying above the fray generally and during periods of heightened enforcement scrutiny.
Martha J. Schoonover is co-chair of the Business Immigration and Compliance Practice and focuses her practice on business immigration matters and assists employers in obtaining temporary, nonimmigrant visas for business persons, managers, and executives, treaty investors and traders, professionals (including researchers and scientists, engineers, computer professionals, and business professionals), exchange visitors, students, and crew members working on the Outer Continental Shelf. In addition, Martha assists in obtaining labor certifications and permanent resident status for professionals, researchers, multinational managers and executives, and other priority workers in obtaining and relinquishing U.S. citizenship.
Nataliya Binshteyn Dominguez focuses her practice on global business immigration matters. She advises corporate and individual clients in a variety of employment-based immigrant and non-immigrant cases. She counsels corporations on Form I-9 and E-Verify employment verification matters, including compliance audits, due diligence for corporate restructuring, and immigration-related defense in connection with worksite enforcement investigations. Nataliya also conducts Form I-9 and E-Verify trainings and frequently authors articles regarding immigration compliance issues. She also represents political asylum applicants in immigration proceedings.