Immigration and Customs Enforcement (ICE), the Department of Homeland Security’s (DHS) primary enforcement agency, continues to focus on worksite enforcement by increasing audits, investigation and prosecution of employers suspected of employing undocumented workers. Form I-9 audits continue to play a significant part in ICE’s worksite enforcement strategy. In June 2011, ICE issued 1,000 Form I-9 audit notices to employers across the US. Employers targeted for a Form I-9 audit are requested to turn over I-9 records within three business days. While it is possible to receive an extension of time, employers should maintain Form I-9s in an accessible and orderly system and conduct periodic self-audits due to the short amount of time available during an actual audit.
In addition to the mandatory Form I-9 process, federal, state and local laws also require certain employers to utilize E-Verify, an electronic verification system that compares an employee’s I-9 information with DHS and Social Security Administration records. Certain federal contracts and subcontracts now contain a clause requiring use of E-Verify. State laws include an Arizona law that requires all state employers to use E-Verify and laws in Georgia and Minnesota that require all public employers and state contractors to use E-Verify. The Arizona law was recently upheld by the U.S. Supreme Court. Penalties for non-compliance include loss of federal or state contracts, fines and loss of state business license. While Michigan does not currently require employers to use E-Verify, both Oakland and Macomb counties require certain county contractors to use E-Verify.
As the focus on employment of undocumented workers continues, employers will continue to be subject to a variety of requirements from all levels of government. Due to the multiple sources of requirements and the high stakes for non-compliance, employers should periodically review current immigration related processes to ensure proper compliance with immigration laws to protect against potential fines, criminal prosecution, loss of contracts and negative publicity.
For more information on these or any other immigration or work authorization matters, please contact your Varnum attorney.