Employers Should Anticipate Tougher Worksite Enforcement Efforts in the Near Future

In a recent report entitled “U.S. Immigration and Customs Enforcement’s Worksite Enforcement Administrative Inspection Process,”  Acting Assistant Inspector General for Audits Mark Bell discussed the results of an audit of U.S. Immigration and Customs Enforcement’s (“ICE”) worksite enforcement processes. The purpose for the audit was to determine whether ICE was meeting directives set out in the 1986 Immigration Reform and Control Act. The report concluded that ICE has been inconsistent in its enforcement policies and made recommendations to improve ICE’s implementation of its worksite strategy and uniformly strengthen its fine and audit procedures.  

The report explains that, under the worksite enforcement strategy, ICE field offices initiate worksite investigations when they receive complaints through a tip line. ICE will issue an administrative inspection by serving employers with a notice of inspection compelling the employer to produce I-9 forms for all its employees and former employees for whom retention requirements were still in effect.  ICE investigators will then inspect the I-9 forms to determine violations, which can be either technical or substantive in nature.  The violations of a lesser nature, technical violations, may include a failure from the employer or employee to fill out all required information. The more serious offenses, referred to as substantive violations, include such failures as not verifying or reviewing the required document presented by the employee, or failing to fill out an I-9 for an employee. 


The Office of Inspector General found ICE’s current worksite enforcement efforts may have hindered its mission to deter employers from hiring unauthorized workers. The report took issue with ICE’s inconsistent implementation of the administrative inspection process and its negotiation of fines with employers, in some instances resulting in reductions of fines of more than 50 percent.  

The report reviewed ICE Homeland Security Investigation (“HSI”) unit’s worksite enforcement strategy from the years 2009 through 2012. According to the report, HSI’s current strategy of investigating compliance with I-9 requirements resulted in 9,140 administrative inspections with fines totaling $31.2 million. These fines were reduced or negotiated down from initial notice of fine figures of $52.72 million. 

The report found a great disparity between enforcement at the different regional field offices. “In analyzing the results of 692 administrative inspections conducted by five field offices from January 2009 to August 2012, we determined that some offices issued more warnings than other offices. The analysis showed about 31 percent of Denver and Chicago field offices’ inspections resulted in fines and approximately the same amount resulted in warnings. In the same period about 7 percent of the inspections from Los Angeles, Miami and New Orleans field offices resulted in fines. In contrast, these three field offices issued warnings for 55 percent, 41 percent and 78 percent of inspections, respectively.” 

Future Implications

The report made three recommendations to ICE:

  1. Enforce its oversight procedures to ensure consistent application of the worksite enforcement strategy administrative inspection process nationwide;
  2. Develop a process to evaluate the effectiveness of the administrative inspection process and modify the process based on the evaluation;
  3.  Direct Homeland Security Investigations field offices to provide consistent, accurate, and timely reporting of information on worksite administrative inspections.

Of particular concern for employers is the report’s recommendation of a uniform, nationwide enforcement process. The report largely criticized those field offices that issued warnings rather than fines and that allowed significant reductions in fines.

ICE did not concur with that particular recommendation. Rather, ICE explained that the variances among the field offices were the result of local mission priorities, resources, and local socio-economic characteristics. This disagreement may point to an internal strife between the Office of Inspector General and ICE HSI Headquarters on the issue of having uniform enforcement policies throughout all field offices. Ultimately, the disagreement may be resolved through directives from the Obama administration.

Evidently, the Office of Inspector General’s position is that ICE’s enforcement strategies should be strengthened and uniformly applied across the regions --- this despite an increase in fines from $1.03 million in 2009 to $12.72 million in 2012.  Whether or not a uniform system is implemented, it is clear that the Obama administration is intensifying its efforts to target non-compliant employers and impose tougher penalties for employers. Employers should expect that the pressures of a mid-term election year will further push the administration to increase the emphasis on compliance and implement stricter workplace enforcement mechanisms.

Accordingly, employers should ensure that proper I-9 internal review procedures are in place to avoid the anticipated harsher penalties.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.