Companies in the Cross-Hairs. The most extensive round of U.S. Immigration and Customs Enforcement (ICE) audits/raids yet is set to begin against employers whose employee records are believed not to comply with U.S immigration and labor laws.
Notices of Inspection (NOIs) will be sent to 652 businesses nationwide — more than ICE issued throughout all of last fiscal year. Per ICE's July 1st announcement, the notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations.
It is critical that businesses which receive these NOI consult with legal counsel before dealing with ICE and before producing any I-9's for ICE. There are multiple issues which should be reviewed carefully, including questions of legal privilege and liability that can impact what legal options and remedies may be available to the employer. Once the documents are in the government's hands, these privileges are limited. Qualified counsel can often negotiate with ICE to narrow what documents are provided.
The Jackson Walker Integrated Solutions Team. Jackson Walker's labor and employment practice group offers integrated worksite enforcement compliance solutions to clients. Our practice team members can audit your company records for both immigration and I-9 compliance, and use the results to counsel employers concerning immigration, labor and employment, and tax issues as part of a comprehensive approach to best practices for compliance. We can also design a compliance program customized to your company's size and needs.
Shift in Policy. This new initiative illustrates the Obama administration's shift from enforcement against undocumented workers, to the employers who hire them, an increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.
"ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE's long-term strategy to address and deter illegal employment," said Department of Homeland Security Assistant Secretary for ICE John Morton. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.
The 652 businesses — 111 in Texas and 26 in Houston — being sent the NOI for a Form I-9 audit have been selected for inspection as a result of leads and information obtained through other investigative means. Due to the ongoing, law enforcement sensitive nature of these audits, the names and locations of the businesses will not be released at this time.
Parallel Increase in Focus at Department of Labor. In conjunction with the increased enforcement efforts of ICE, the U.S. Department of Labor recently announced the addition of 150 field investigators for its Wage and Hour Division's general enforcement activities, and 100 field investigators under the American Recovery and Reinvestment Act who are being hired to ensure compliance with applicable wage and hour laws by contractors receiving stimulus money. The DOL has also announced that it will be focusing more upon wage and hour enforcement, including pursuit of penalties and fines against responsible company officials. Additionally, it will be coordinating its enforcement efforts with ICE by increasing the number of bilingual investigators to assist with the wage and hour issues that can be prevalent with employers who do not comply with the documentation requirements of the Immigration Reform and Control Act.
James D. Prappas is a partner who is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. Lionel M. Schooler is a partner who routinely represents employers in employment law and the interaction between immigration and personnel policies and compliance. Both Mr. Prappas and Mr. Schooler are resident in the Houston office of Jackson Walker.
Jackson Walker's Labor and Employment practice group offers integrated statewide worksite enforcement compliance solutions to clients. Our practice team members counsel employers concerning immigration, labor and employment, and tax issues as part of a comprehensive approach to best practices for compliance.
For more information on this issue, please contact:
James D. Prappas at 713.752.4298 or jprappas@jw.com
Lionel M. Schooler at 713.752.4516 or lschooler@jw.com.
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