[Editor's Note: today's blog is courtesy of Wendy Padilla-Madden from Balch & Bingham LLP.]

We’ll start with a simple and often painful truth: Form I-9 and E-Verify compliance is the new hot topic in corporate risk management that just keeps getting hotter by the minute. Since ICE announced its bold new worksite enforcement strategy last year, we’ve seen dramatic increases in the number of I-9 audits, higher assessed (or agreed upon) fines, and perhaps most telling – heightened public awareness that ICE means business with regard to worksite enforcement. But let’s just stick with the I-9. Our one-page friend that has been stirring up so much trouble in the world of corporate compliance. While you might think that this facially simple, one-page form would have equally clear instructions, maybe a single FAQ, and some related guidance, that is far from the case. As my respected colleagues on this blog have noted, the I-9 guidance from various agencies has been inconsistent, quickly changing, and widely hidden from the people who need it the most: human resource managers completing the form and those attempting to correct the mistakes of the past. It’s no wonder that many employers find themselves in a dangerous I-9 predicament, hungry for guidance that can help them sort out the mess.

While nothing in government moves quickly, we have seen some progress as of late in educating the public through outreach programs and more open discussions with I-9 stakeholders. My blog today will briefly cover one of those recent events: the Workplace Enforcement and Immigration Conference by the Federal Bar Association, Chicago Chapter. With speakers ranging from private sector attorneys to government officials in charge of enforcement, this conference presented a veritable feast of I-9 and E-Verify information (some new, some old) from experts in the field. Now, I recognize that not everyone has the time (or the stomach) for such large doses of I-9 and E-Verify, so here’s a brief taste of the what the conference revealed in terms of ICE enforcement, electronic I-9 audits, and E-Verify monitoring.

ICE Investigations

Brett Dreyer (Unit Chief, ICE Worksite Enforcement) spoke of the broader issue and politics of immigration enforcement. While politicians wrestle with immigration policy, the Worksite Enforcement Unit is responsible for enforcing the existing law utilizing its 26 Special Agent in Charge (SAC) districts and 150 smaller offices. The FY 2010 statistics certainly reveal that their new enforcement strategy is proceeding according to plan, with a record number of I-9 reviews and civil fines this year. Brett mentioned that ICE’s worksite focus will remain on employers and that I-9 inspections will most likely continue in “blasts” in all 50 states, which naturally increase public awareness and attention.

While criminal enforcement over the past year has been relatively light (187 prosecutions), ICE remains committed to prosecute employers that are knowingly hiring unauthorized workers. Agents are instructed to gather evidence of wrongdoing, which usually targets the owners and principal managers of the business. Criminal penalties will usually depend on the charges brought, but they could range from up to six months in prison for a knowing hire up to a maximum of 10 years for harboring. The most common “knowing hire” charge can occur when an employer neglects to re-verify an expired work authorization document for a current employee. In these instances, ICE will consider the employer to have “constructive knowledge” that the employee is not in fact authorized to work. The silver lining: if it’s an isolated incident, ICE may instead pursue a civil charge.

I-9 Audits and Electronic I-9s

Administrative I-9 audits are clearly the tool of choice for ICE in most worksite enforcement cases. Brett reiterated that inspections are initiated from leads of specific wrong-doing or against employers that are involved in critical infrastructure. The amount and type of information requested (in the notice and subpoena) often vary based on the nature of the allegation and the workload of the auditor. ICE will soon be utilizing a “national subpoena generator” template that will standardize the format of these letters and thus promote some consistency. Individual agencies or agents, however, will retain some discretion as to what information can be requested.

Speaking of discretion, many employers are struggling these days to choose the right electronic I-9 solution, especially in light of the well-publicized Abercrombie & Fitch settlement. Despite the need for plain-English electronic standards or even an “ICE certification” program, Brett indicated that ICE has no intention of certifying software programs or issuing public guidance. Instead, Brett simply indicated that each inspection is handled differently, and the inspector will be left to use his or her own judgment in ensuring that the system meets the requirements listed in the regulations.

Sounds a bit vague, right? When pressed further though, Brett discussed two specific requirements that form an integral part of an ICE electronic I-9 investigation: (1) audit trails that follow the regulations for determining the who, what, when, where and why of I-9 actions, and (2) capturing ALL of the required data as you normally would in the paper I-9 world. This last point, in particular, appears to have tripped up Abercrombie to some degree, although the exact details are still unknown. Bottom line: choose your electronic I-9 software and provider carefully!

I-9 Enforcement Meets E-Verify

For the most part, E-Verify enforcement has been nonexistent with the exception of a few compliance letters or OSC (Office of Special Counsel) interventions against employers that are found to be misusing the system. This does not, however, mean that your E-Verify behavior is unlikely to be scrutinized. Far from it. During an investigation, ICE will often request copies of supporting documents (which an employer may be required to retain for photo tool purposes) or they can make an inter-agency request for specific case data from E-Verify. In this regard, ICE is primarily looking for evidence of deliberate misuse of the system which would constitute a criminal violation, but this could easily change to more “technical” probes in the future.

What’s Lies Ahead?

When it comes to I-9 and E-Verify compliance, there’s always some new policy, practice, or even regulation brewing behind the scenes which can drastically alter the landscape. And believe me, this meeting did not disappoint! Here’s the latest scoop of I-9 and E-Verify developments coming soon:

Revised field guidance regarding fines and regulation interpretation to SACs. A redacted version will be made public simultaneously without the need for a FOIA (Freedom of Information Act) request.
AILA’s verification committee is working to produce an outline to show an employer how it can correct I-9 deficiencies and demonstrate good faith
New version of the M-274 Employer Handbook, the often-consulted treatise on I-9 compliance rules.
OSC guidance on dealing with SSA No-match letters. OSC released undated guidance on this topic last week.

For More Information