With increasing frequency, the media is reporting on the enforcement activities of the U.S. Immigration and Customs Enforcement (ICE), the largest investigative arm of the U.S. Department of Homeland Security (DHS). These enforcement activities have included the indictment, arrest and conviction of employers for “harboring illegal aliens” or for “knowingly accepting fraudulent documents” from persons not eligible to work in the United States. Other enforcement activities have been directed at locating and prosecuting illegal immigrants. All of this means business disruptions for employers.

Just last month six facilities in six states — Colorado, Iowa, Minnesota, Nebraska, Texas, and Utah — owned by Swift & Company, one of the nation’s largest processors of fresh beef and pork, were served with civil search warrants. The result? The shutdown of production for Swift and the arrest of 1,282 illegal workers on administrative immigration violations, including 65 people also charged with criminal offenses related to identity theft or other violations.

Why the increased enforcement? Matthew C. Allen, of the ICE, testified last July before a Congressional subcommittee that, “Criminally charging employers who hire undocumented aliens will create the kind of deterrence that previous enforcement efforts did not generate. We are also identifying and seizing the assets that employers derive from knowingly employing illegal workers, in order to remove the financial incentive to hire unauthorized workers and to pay them substandard wages.”

Today, an employer must be vigilant in its review of documents presented by employees to establish both their identity and eligibility to work in the United States. To reduce the possibility of criminal or civil liability for hiring unauthorized workers, an employer should:

1. CAREFULLY REVIEW how to complete the employment eligibility verification form (I-9).

2. ANNUALLY AUDIT all I-9 forms to ensure compliance with the law.

3. CORRECT ANY I-9 FORMS found to contain errors during the annual audit.

4. TAKE PROMPT ACTION if a “no-match” letter is received from the Social Security Administration (SSA). Do not assume that the employee does not have work authorization. Do not immediately terminate the employee. Do give the employee a reasonable time to correct no-match problems by giving him notice and advising him to contact the local SSA office.

Remember, an employer is obligated to make I-9 forms available for inspection when requested by an authorized officer of the DHS or the Department of Labor with at least three days’ advance notice. No subpoena or warrant is necessary. The inspection and review must take place at the employer’s location where the I-9 forms are maintained.

Reducing potential liability for I-9 errors is easy. It just takes time and a commitment of senior management.

— Ronald G. Guerra, member,
Jordan Schrader labor/employment law group,
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