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This blogpost has been updated on July 23, 2019 with information regarding the number of audit notices issued.

Seyfarth Synopsis: The temperature may be heating up in the nation’s capital, but Immigration and Customs Enforcement (ICE) is keeping things cool.  ICE Acting Director, Matthew Albence, confirmed that almost 3330¹ Notices of Inspection (NOI) have already been served, across the 50 states and Puerto Rico, initiating Form I-9 audits for companies of all shapes and sizes. It is expected that over 5000 NOIs will be issued before this latest ICE blitz is over. With the current enforcement climate, there may even be a resurgence of pre-dawn enforcement actions – otherwise known as “raids” – to surprise both workers and their employers. Companies should expect penalties to climb sky high, with recent reports of multi-million dollar fines, especially for non-compliant electronic I-9 systems — that’s right, something that has nothing to do with unlawful workers.  It is expected that over 5000 NOIs will be issued during this round of audits

What is an NOI?

An NOI initiates a government administrative inspection of a company’s Forms I-9 to determine whether they are complying with existing law.  U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) leadership considers civil administrative audits to be just one of many tools that ICE can use to reduce the demand for unauthorized unemployment and to protect opportunities for U.S. workers.  The current enforcement strategy includes an expanded use of civil penalties, employer audits, and debarment, as well as the criminal prosecution of employers who knowingly break the law.

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On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20. HSI served 2,738 I-9 Notices of Inspection (NOIs[1]) to US businesses around the country after serving 2450 during its first phase earlier this year. In sum, HSI has now issued almost 5200 NOIs since the beginning of October 2017. Not only this, but HSI also has made 675 criminal and 984 administrative worksite-related arrests. These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance. Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. Paperwork violations range from $224 to $2236. Companies may also face additional fines, penalties and forfeitures, and government contractors may face debarment from federal contracts.

In ICE’s press release, HSI reminded employers about its “three-pronged approach to worksite enforcement: compliance, form I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.”

These events have been expected and actually follow prior comments by HSI officials that we previously reported, confirming that 2018 will be a year of increased immigration enforcement.

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This blog was first published as a Seyfarth Shaw Management Alert on July 17, 2018

By Dawn M. Lurie and Alexander Madrak

Seyfarth Synopsis: Immigration and Customs Enforcement (ICE) increases worksite enforcement by more than 50%.  What should employers understand to prevent fines and minimize reputational risk?

Since the start of fiscal year 2018, ICE has increased worksite enforcement actions by over 50%.  Compared with fiscal year 2017, administrative arrests have increased nearly 400% while worksite investigations have risen from 1,716 to 3,510—with the last quarter of the fiscal year remaining for these numbers to increase.[1]  ICE appears to be making good on the remarks made by leadership to increase worksite enforcement “four to five times.”

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Seyfarth Synopsis: Following the wave of Notices of Inspection (NOI) at 77 Northern California businesses last month, Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) agents are continuing to spread the cheer with NOIs targeting businesses in Southern California this week.  Serving NOIs throughout the greater Los Angeles area, the inspections appear industry agnostic.  The NOIs delivered by HSI agents and auditors notify businesses that they must produce their employees’ Forms I-9, Employment Eligibility Verifications within 72 hours.  The notices often include a list requesting additional company information and documents as well.

Local HSI offices are keeping ICE’s Deputy Director Thomas Homan’s promise of increasing its activities not just across the nation but more specifically targeting sanctuary cities and states like California.  It is important to note that businesses receiving the NOIs are not all within the service, manufacturing, agriculture, or traditional “infrastructure” sectors. Employers across industries should take a look at their Form I-9s and overall immigration compliance – the time to figure things out is not during the 72 hours after a NOI is issued.

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By Dawn M. Lurie and Alexander Madrak

True to its word, last week Immigration and Customs Enforcement (ICE) agents issued Notices of Inspection (NOIs) at seventy-seven Northern California businesses. ICE’s Homeland Security Investigations (HSI) agents spread out across northern California, serving NOIs in Sacramento, San Francisco, and San Jose at the end of January. No…

By: Dawn M. Lurie, Alexander Madrak and Greg Morano*

United States Citizenship and Immigration Services (USCIS) issued automatic extensions of Employment Authorization Documents (EADs) for Temporary Protected Status (TPS) beneficiaries from Nicaragua, Honduras, Haiti, and most recently, El Salvador. Employers should be prepared to recognize these automatically extended EADs and correctly handle the resulting influx of Form I-9 updates.

What’s the Latest on TPS?

While the government is back in business, the path to immigration reform seems as tumultuous as ever. The chances to reverse the termination of TPS are slim, and the impact is slowly beginning to sink in for TPS beneficiaries and employers alike. An Immigration Forum Fact Sheet on TPS notes: “Recent data estimate that TPS holders from El Salvador, Honduras, and Haiti contribute a combined $4.5 billion in pre-tax wages or salary income annually to our nation’s gross domestic product.”

What Do Employers Need to Know?

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  1. By: Mahsa Aliaskari

Update: At midnight the federal government shut down.  We will keep employers updated as details of immigration related closings and the negotiations in Congress become available.

Seyfarth Synopsis: As we wait to hear the fate of yet another temporary extension to continue funding the government after midnight on Saturday January 20th – employers should know how a shutdown may impact processing of immigration petitions and immigration programs.

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By: Dawn M. Lurie

Seyfarth Synopsis: “ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”  Referring to Immigration and Customs Enforcement’s (ICE) early morning raids at nearly a hundred franchisee convenience stores across the nation, the ensuing public comments from agency officials confirm that 2018 will be a year of increased immigration enforcement.  ICE investigations can result in the arrest of employers and employees and the imposition of large-scale fines; under the current Administration, though, it’s not only ICE that companies need to consider.  Following the “Buy American, Hire American” Executive Order, a myriad of reinvigorated agencies that span all parts of the government have increased immigration-related oversight.  Employers should proactively prioritize addressing immigration compliance. 

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Seyfarth Synopsis: With a record $95 million plea deal for I-9 immigration violations following a six year investigation, the outcome for a Pennsylvania company with operations nationwide serves as a reminder of the federal government’s unwavering commitment to investigating and enforcing of immigration laws. A look at the facts behind the headlines helps us understand…

Seyfarth Synopsis: As the Department of Homeland Security, as well as the administration generally, signals increases in immigration enforcement activity, businesses are advised to implement clear protocols for the conduct of key personnel in the event of a visit by a federal officer, particularly Special Agents of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”).   This guidance identifies the likely purposes of an ICE visit and sets forth critical steps for key personnel should such a visit occur.  Businesses are advised to work with legal counsel to tailor this general guidance to their specific industry and business processes.

In light of the Trump Administration’s promises of increased immigration enforcement, employers and employees are growing more concerned about the prospect of government worksite visits either to effectuate arrests or to conduct investigations and audits.  To be clear, the Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement  (“ICE”) agency has clarified that there has been no directive to initiate worksite enforcement (aka raids) against employers. Notwithstanding, it does appear that recent ICE arrests have swept not only individuals either alleged to have committed a crime or for whom an immigration warrant is outstanding, but also others accompanying the intended arrestee who are found to lack legal status in the U.S.

In addition to arrests, other investigative and audit activity looms on the horizon. Chatter continues about a possible increase in Form I-9 audits by ICE’s Homeland Security Investigations Unit (HSI), and similar activity by the U.S. Citizenship and Immigration Services Fraud Detection National Security Unit [1] as well as it’s E-Verify Monitoring and Compliance branch [2]. Additionally, the Department of Justice’s newly named Employee and Immigrant Rights Office (legacy Office of Special Counsel), will continue to pursue investigations into citizenship, national origin discrimination and document abuse matters. This Alert focuses on a visit by the folks at HSI, a separate Alert will be focused on USCIS site visits and investigative visits by other agencies.

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