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The Department of Homeland Security held a symposium—Government and Employers 2009: Working Together to Ensure a Legal Workforce—in Washington, D.C. on November 19, 2009. Speakers from DHS agencies covered topics such as employment eligibility compliance, the E-Verify federal contractor rule, and the future course of worksite enforcement at this first-of-its-kind day-long conference.
Scott Wright, a partner in the Faegre & Benson employment practice and manager of the firm's business immigration law practice, attended the symposium. Wright was quoted in an Associated Press article about the DHS symposium. The article appeared in the Houston Chronicle, Chicago Sun-Times, Miami Herald and USA Today and on ABCNews.com and in several other news outlets across the country.
ICE Seeking Culture of Voluntary Compliance
"Employers need to have their I-9s in order."
John Morton, assistant secretary of U.S. Immigration and Customs Enforcement (ICE), led off with this simple warning, reflecting a shift from the previous administration's heavier reliance on massive raids and arrests of illegal alien workers.
Employers will continue to see an increase in I-9 audits that lay the foundation for criminal investigations, according to Morton. The goal for ICE, he said, is to "create a culture of voluntary compliance," so "heavy enforcement" can decrease.
ICE is working to develop greater cooperation and a broader dialogue with employers to develop best practices so voluntary compliance efforts work to decrease certain industries' dependence on illegal workers. But to get to that point in the dialogue, Morton said businesses in all 50 states should expect to see more fines, more employer prosecutions—and increased use of debarment from federal contracting privileges for employers who fail to comply.
USCIS Seeks Expanded Employer Participation in E-Verify Program
Following Morton's opening remarks, Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services (USCIS), discussed the government's objective of expanding employer participation in the USCIS E-Verify program. Mayorkas described E-Verify as a tool the exemplifies "responsible corporate citizenship."
New guidelines that require many federal contractors to enroll in E-Verify have boosted the number of registered employer users to 169,000, at a rate of 2,000 new registrations per week in the last two months. This is double the rate of employer registration as compared to 2008.
Janet Napolitano, Department of Homeland Security secretary, then formally introduced a new public relations initiative to underscore that E-Verify is the "centerpiece" of the administration's efforts to ensure a legal workforce in the years ahead.
Napolitano explained that DHS chose to abandon the controversial Social Security no-match rule, which had been introduced during the Bush administration. DHS decided instead to focus energy and resources on E-Verify, which she described as "a better tool to get the job done." The new I E-Verify campaign uses participating employer testimonials which, according to Napolitano, should help expand the use of the tool.
"Companies who use it are the best advocates for how well it works," she said. "And the public should know who is using it."
Employers Will Be Subject to Enforcement
As much as the DHS, ICE and USCIS speakers worked to emphasize the carrots available to employers through greater government-business collaboration, nearly every speaker in this reiterated the Obama administration's intent to increasingly wield the stick of different enforcement tools to hold employers "accountable."
Napolitano was especially blunt in saying that employers "must pay the price" if they knowingly employ illegal aliens, and that the enforcement efforts against them were an "essential component" in any effort to ultimately achieve a comprehensive immigration reform.
She also pointed out that immigration enforcement efforts are often needed to keep businesses on an even playing field. "We want to make sure that companies that seek illegal workers at lower wages don't have an advantage over the businesses that follow the law," said Napolitano
To ensure Napolitano's enforcement message reached beyond the 150 businesses and law firms represented at the symposium, ICE agents issued I-9 notices of inspection (NOI) to 1,000 employers across the country the same day.
This follows 650 I-9 audit notifications served on employers in early July—placing 2009 at the high water mark for the number of I-9 NOIs issued at any time since the employer sanctions laws went into effect under the Immigration Reform and Control Act of 1986.
For a copy of the press release announcing 1,000 new I-9 audits across the country, click here.
Once Audited, Companies Should Not Let Their Guard Down
Brett Dreyer, ICE unit chief for worksite enforcement, emphasized that companies that have already been audited should not let their guard down. "Re-inspections are highly likely" due to what Dryer described as evidence suggesting illegal aliens identified and terminated through I-9 audits are sometimes being permitted to return to work at the same companies through the use of other (equally fraudulent) documents.
Dreyer cautioned the business community that higher penalties can be sought against employers that employ such practices and that agents are encouraged to recommend follow-up I-9 audits where they learn of workers returning under new identities.
USCIS Studying Patterns of E-Verify Misuse
Kathy Lotspeich, USCIS deputy chief of verification, informed attendees that employers should expect to hear more from the government about their use of E-Verify. The E-Verify Monitoring and Compliance Unit, established by USCIS in June, is currently analyzing data to find more ways E-Verify can be used to identify and prevent identity theft. The unit is also looking for data that suggest employers may be using E-Verify to screen workers. If found, those cases will be referred to the Office of Special Counsel of the U.S. Department of Justice for possible investigation.
Employers will likely hear more from the Monitoring and Compliance Unit starting in 2010. More calls and letters will go out to employers when USCIS tracks patterns of mis-use or mistakes. Lotspeich also envisions the possibility of employers ultimately being subject to "desk audits," similar to how affirmative action programs are audited by the Office of Federal Contract Compliance Programs of the U.S. Department of Labor.
Both Lotspeich and Dreyer confirmed that USCIS E-Verify personnel will, on occasion, provide ICE with E-Verify data. Dreyer emphasized that this is rare and only occurs when the information relates to potential criminal conduct. He said that only two leads of this kind have been passed from the USCIS E-Verify unit to ICE in the last six months.
Attendees Express Concern About Finding Workers
Several participants in the symposium voiced their concern that the government's strategy, which emphasizes strong enforcement as a way to win support for comprehensive immigration reform, will take too heavy of a toll on the agricultural industry.
"Tell me where we're supposed to find the workers to do these kinds of jobs," one attendee said to the panel. Others highlighted how difficult the increasingly complex immigration compliance process has become, especially for small and family-owned businesses—adding cost and competitive disadvantages in an already challenging economy.
But the government made it clear that its strategy of heightened enforcement against employers is moving forward without delay. It certainly was no coincidence that Kumar Kibble, acting director of the ICE Office of Investigations, was selected to provide the closing remarks for the symposium.
Government: I-9 Compliance Must Be Taken Seriously
A former ICE agent who attended the event summed up the day by saying, "We've seen a paradigm shift. They aim to identify illegal workers through these audits and force the companies to fire them."
The symposium reinforced Obama administration policy statements from earlier in the year when Napolitano and Morton said enforcement needed to focus more heavily on employers as a way to reduce illegal immigration.
Use of ICE I-9 audit authority has already provided some dramatic results in 2009. An audit of California-based American Apparel led to that company terminating an estimated 1,800 workers, who ICE accused of using false documents. An audit of the national contracting company ABM led to the termination of 1,200 janitors in the Twin Cities in October.
Hundreds of other I-9 audits conducted by ICE in 2009 have led to terminations of workers (albeit in much smaller numbers) throughout the country. ICE is seeing that it can apply great pressure to employers, and achieve large numbers of terminations of unauthorized workers without the great expense, litigation and public relations problems associated with the large-scale raids that defined the agency's worksite enforcement program from 2005 to 2008.
ICE Taking Additional Steps
This strategy shift is not only a move away from worksite raids. ICE is taking other steps that are designed to convey a consistent message to the business community that I-9 compliance must be taken seriously. These include:
ICE fast-tracking audits. ICE is generally less amenable to granting extensions to employers in responding to I-9 notices than in years past. Likewise, field agents are being given shorter, more definitive goals for completing audits and writing up recommendations. These efforts have shown results, with over 60 companies having already received notices of intent to fine from ICE among the 640 I-9 audits that took place in July of 2009.
More administrative enforcement to quicken penalty process. During the Bush administration, ICE frequently collaborated with federal prosecutors on immigration investigations that led to a record number of criminal charges being brought in federal court against companies and managers for immigration law violations. But during those years, ICE rarely used the more traditional administrative law process to assess fines for employers for mistakes in their Employment Eligibility Verification I-9 records. That has changed dramatically, as ICE is now pursuing a record number of cases through the administrative process to seek fines against employers. ICE is still involved with a number of criminal law prosecutions through the federal courts. But senior officials at ICE believe they will have a greater deterrent effect on employers if they seek sanctions against a larger number of non-compliant companies through the administrative courts (which also have the benefit to ICE of requiring far less resources).
ICE's clear goal is to displace illegal alien workers through these audits. But the government's overarching objective is to influence the legislative and political process on immigration policy. Napolitano made no attempt to cloak the fact that these efforts are viewed by the current administration as a necessary step in the overall campaign to secure comprehensive immigration reform. In the 1990s, public and political pressure forced the INS to essentially stop any serious attempts to impose I-9 sanctions. Today, very different public opinion winds are blowing through Washington. And the symposium made it clear that those winds will likely provide employers with a forecast for even heavier I-9 auditing by ICE in the coming year.