[Editor's Note: today's blog is courtesy of [url=http://www.electronic-i9.com/?page_id=320]Dawn Lurie and Kevin Lashus[/url] of Greenberg Traurig]

On the heels of a Department of Homeland Security (DHS) Inspector General (IG) audit report, “Information Sharing With Fusion Centers Has Improved, but Information System Challenges Remain,” Immigration and Customs Enforcement (ICE) Homeland Security Investigation’s Directorate (HSI) will soon announce the opening of a Form I-9 Audit Fusion Center.

The IG report states that “DHS has made progress in its efforts to improve information sharing with fusion centers. Fusion center personnel indicated that information sharing had improved over time and the information received from the Department met their needs primarily due to the deployment of DHS intelligence officers to the centers. As a result of improved information sharing, fusion centers have successfully collaborated with the Department during numerous large-scale events and maintained situational awareness after attempted terrorist attacks and other incidents.”

In a nutshell, it is expected that Director James Dinkins or ICE Assistant Secretary John Morton will soon announce the opening of this new worksite enforcement fusion center staffed with nearly 20 forensic auditors committed to examining Forms I-9 of large employers. We understand that several special agents will also be located at the center. The creation follows the HSI’s recognition that assigning auditors to local SAC (Special-Agent-in-Charge) and RAC (Resident-Agent-in-Charge) offices may tend to limit the HSI’s ability to focus on larger employers because a single auditor may not have the ability to review thousands of Forms I-9.

In an effort to boost capacity and entice the SAC to audit larger employers, a Special Agent may request use of the fusion center to assist with a large-scale audit. While the ranks of forensic auditors have been increasing steadily, the Center will not be used to replace local personnel, but rather to increase the national bandwidth of the auditor core.

Additionally, employers should anticipate much more coordination between additional enforcement agencies— Internal Revenue Service (IRS), Department of Labor (DOL) Wage & Hour, and Department of Justice (DOJ) Office of the Special Counsel to name a few. The fusion center concept is not new to DHS and this new Form I-9 Audit Fusion Center will add to the arsenal being created to target all types of immigration fraud. The fact that these forensic auditors will be situated at one centralized location (somewhere near the Washington D.C. ICE Office in Fairfax), coupled with the ability of auditors to take advantage of liaison relationships with their counterparts at sister law enforcement agencies, makes it likely that larger, multi-location companies (notably those employers that cross HSI areas of responsibility) may find themselves susceptible to organization-wide investigations rather than single worksite operations.

Several SAC offices have found value in these broader audits; these offices recognize that some large employers “choose” to intentionally decentralize their I-9 compliance practices. This decentralization strategy, which generally does not provide for oversight from corporate headquarters, previously allowed employers to keep investigations contained to one worksite. Now, having the fusion center and auditors charged solely with the I-9 review, Special Agents are freed up to “investigate.” General Counsels, Compliance Directors and HR Executives charged with this area of responsibility may find themselves in hot water if their individual worksites have problems and such problems begin to spread to other locations.

We believe that employer sanctions investigations will expand rapidly for larger employers targeted as a result of compliance failures on localized levels. It is therefore critical that employers establish one national written hiring and employment eligibility verification policy for each hiring location to ensure consistent recruitment and employment of new employees. Operating procedures may vary by location as long as they are consistently practiced and sanctioned by the company as a whole. Additionally, it is essential for larger employers to establish internal compliance and training programs related to verification processes, to include: completion of the Form I-9, how to detect fraudulent use of documents in the verification process, and how to use E-Verify as a best practice or where required—either due to state and local mandates or by virtue of the Government contractor Federal Acquisition Regulation (FAR).

Additionally, if utilized efficiently, we project that HSI may also utilize the Form I-9 Audit Fusion Center to evaluate the compliance flow-down requirements—based either in contract or as mandated by the FAR—between general and subcontractors. As a result, “worksite” might eventually refer to all employers or contractors at a given location. A multiple-employer audit at a given project may result in a larger fine because compliance failures that otherwise would have gone undetected may now be exposed. Agents working in tandem with the Fusion Center will be able to study trends, details and data that are compiled by forensic auditors based on I-9 violations. Debarments and further criminal investigations are also likely to increase as violations contributable to reviewed patterns and practices may become evident.

HSI is committed to creating a culture of compliance. The anticipated Form I-9 Audit Fusion Center is one more tool in the ICE cache to ensure employers understand that they may find themselves the subject of a worksite investigation regardless of their size or location(s).


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