I-9 Audits on the Rise in Obama Administration

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I-9 Audits on the Rise in Obama Administration
By Allen Smith
1/11/2011

Immigration raids have decreased and the number of I-9 audits has risen dramatically in the first two years of the Obama administration, according to immigration attorneys.

“In the past two years, the Obama administration has significantly changed the direction of Immigration and Customs Enforcement’s worksite efforts,” Kevin Lashus, an attorney with Greenberg Traurig in Austin, Texas, told SHRM Online. “The Bush administration was interested in taking the highest numbers of unauthorized workers into custody during any time frame. The Obama administration, on the other hand, is interested in targeting the employers that hired them.”

Criminal Prosecutions
While Immigration and Customs Enforcement (ICE) in the Bush administration locked down buildings and herded workers into interrogations and ultimately onto planes for removal, the Obama ICE has increased administrative fines and paper audits—after which employers are asked to dismiss unauthorized workers, Lashus said. Criminal prosecutions of employers also have risen under the Obama administration, he added.

“Raids the way they used to be are not used by ICE anymore,” agreed Mira Mdivani, an attorney with The Mdivani Law Firm in Overland Park, Kan. “In the past, ICE raided workplaces, arrested workers en masse and placed them in deportation proceedings.” Since April 2009, ICE’s stated priority has been the criminal prosecution of employers, she remarked.

“These days, ICE investigates the employer without the employer’s knowledge for months before serving a notice of I-9 inspection on the unsuspecting employer,” Mdivani said. “So while the decorum is much nicer, the consequences for the employer may be much more serious, including criminal and civil liability.” The focus has changed, Mdivani concluded, to prosecuting employers, not workers.

Some raids may continue where undocumented workers are present, according to Hector Chichoni, an attorney with Duane Morris in Miami. But Secretary of the Department of Homeland Security Janet Napolitano “has pledged over and over to increase the focus on criminal punishment for employer violators.” He added that under the Obama administration, possibly in association with other federal agencies such as the Labor Department and Internal Revenue Service, ICE inspections will continue and possibly increase.

“Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers,” Chichoni said. “The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area.”

There are many more I-9 audits in the Obama administration, according to Bonnie Gibson, an attorney with Fragomen, Del Rey, Bernsen & Loewy in Phoenix. “There were so few audits in the Bush administration that I don’t have any basis for comparison,” she remarked. “There is a new crop of audit staff, and ICE investigators and fines and pending notices of intent to fine are up dramatically.”

Agency Cooperation
Another change has been the increased cooperation among ICE and other government enforcement agencies. Gibson said ICE recently established a joint agency task force to gather information from multiple government sources and to target joint enforcement efforts.

Fusion centers have been established to facilitate cooperation among agencies, added Mary Pivec, an attorney with Keller and Heckman in Washington, D.C. Wage and hour investigators, ICE auditors and tax auditors all are in one place at the fusion centers to share resources, leverage information and pursue top-to-bottom audits, she said. An employer in trouble tends to have violations that crisscross the workforce enforcement realm, so the government thinks it makes good sense to maximize its resources and have agents from different departments investigate together, Pivec said. What starts out as a wage and hour audit may become an ICE audit, as investigators have been cross-trained to recognize what might be violations of laws other than the ones they enforce, she commented.

Technical Violations
As for government audits of employers, Pivec said employers are being “nickeled and dimed with technical violations” of I-9s.
“In the past, an I-9 audit may have ended with a reprimand and a fine,” Mdivani added. “Now, it is ICE’s policy to use I-9 audits to lay the foundation for criminal prosecutions. When ICE is unable to do so, they still get their pounds of flesh.” She said that even in the case of a recent audit of Abercrombie & Fitch, where there wasn’t a single unauthorized worker, “ICE fined the employer $1 million for what essentially were paperwork I-9 violations. Under these circumstances, every employer is vulnerable.”

Allen Smith, J.D., is SHRM’s manager of workplace law content.
Related Articles:
Abercrombie & Fitch Fined More than $1 Million After I-9 Audit, SHRM Online Legal Issues, Oct. 4, 2010
Avoiding Immigration Audits, HR Magazine, January 2011

Edited for publication in this blog.

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