Thursday, March 4, 2010

Has your company been ICED?

U.S. Immigration and Customs Enforcement (ICE) has announced that it is issuing an additional 180 Notices of Inspection to employers in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. This brings the number of administrative audits that ICE has announced in the last 8 months to 1832. On July 1, 2009, John Morton, the Department of Homeland Security Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE) announced a policy change, issuing notices of inspection to 652 employers across the country to initiate administrative I-9 audits. On November 19, 2009 DHS announced that it had issued an additional 1000 notices of inspection to employers in critical infrastructure industries.

These announcements marked a shift in enforcement emphasis from the Bush administration’s worksite enforcement policy which emphasized criminal immigration investigations of employers using criminal search warrants, without advance notice.

The Forms 1-9 must be available for an inspection at the location where the government officers request to see them on three days' notice.

It is wise for an employer to comply with an ICE request to inspect the Form 1-9. If the employer does not comply with the request to present the Form 1-9, ICE may compel production by issuing a subpoena. A refusal or delay in the production of the Form 1-9 will be considered a violation of the retention requirements by the government.

ICE may also assert general powers to obtain personnel records that pertain to the hiring and employment of an individual employee. In the absence of the employer's willingness to produce the personnel records, ICE may issue an administrative subpoena to obtain these materials.

ICE investigations determine whether employers have violated the prohibitions against knowingly employing unauthorized aliens and Form 1-9 paperwork violations. Before ICE can issue a Notice of Intent to Fine for technical or procedural I-9 errors the employer must be provided with a ten day notice and the opportunity to correct these deficiencies within that period.

Depending on the alleged violations, an ICE warning or a Notice of Intent to Fine (NIF) may result. In cases when a NIF is issued, employers may request a hearing within 30 days of its service hefore an Administrative Law Judge of the Office of the Chief Administrative Hearing Officer (OCAHO). Hearing requests must be in writing and filed with the ICE office designated in the NIF. If a hearing is not requested within the 30-day period, the ICE will issue a final order to cease and desist and to pay a civil money penalty.