The Immigration and Customs Enforcement, or ICE, is the agency within the Department of Homeland Security charged with enforcement of our nation's immigration laws. Today, when an employer has to deal with ICE, it is rarely fun and almost always expensive. This is especially true for construction contractors.
In the spring of 2006, the Bush Administration announced a major change in immigration enforcement. Then DHS Secretary Michael Chertoff announced that DHS and Immigration and Customs Enforcement (ICE) would begin using criminal sanctions to prosecute employers that knowingly employed illegal workers. For the next two and a half years, enforcement was conducted by means of investigations by interagency task forces that involved ICE, IRS, DOL, state and local law enforcement, and sometimes even the FBI and DEA. These enforcement efforts cost a lot of money; therefore, the pressure was on the government agencies to produce results. This in turn led to highly publicized raids or sweeps that were very disruptive to employers, families and local communities.
The Obama Administration believes that the "collateral damage" to families and local communities is too costly, and as a result, the nature of immigration enforcement is changing. Instead of massive sweeps and "crack of dawn" raids, ICE has turned to I-9 paperwork inspections as the principal enforcement tool. For example, on July 1, ICE sent Notices of Inspection to 652 US businesses. On November 19, ICE Assistant Secretary John Morton announced that another 1,000 U.S. employers would be receiving Notices of Inspection commencing enforcement action. These paperwork audits will likely result in civil money penalties, but in extreme cases can also result in criminal sanctions.
Employers should not be lulled into a false sense of security just because they have not yet received a Notice of Inspection. Neither ICE nor DHS is ruling out site visits for enforcement purposes, and unfortunately, small business entrepreneurs remain at risk. This is especially the case in the restaurant, hospitality and construction industries where ICE has a history of criminal prosecution of employers for immigration violations. Construction employers face an even greater risk insofar as they are engaged in infrastructure projects, i.e. work on military bases, airports, harbors, power plants, roads and bridges, etc.
Construction jobsites are sometimes viewed as "easy pickings" by ICE because jobsites are often open, fairly easy to seal off or surround, and do not involve a risk of interfering with other businesses that are not the focus of enforcement. In addition, ICE views the construction industry as having historically employed large numbers of illegal workers; therefore, today's contractor is viewed with suspicion.
Although we are not likely to see large-scale raids or sweeps, the use of criminal sanctions continues. Moreover, it is becoming more common for the government to go after the corporation itself rather than prosecuting only certain individuals. Once ICE turns the case over to the U.S. attorney for prosecution, the government often has invested so much in the way of enforcement resources that settlement becomes very difficult and expensive. It is common for the U.S. attorney to authorize seizure of the company's assets or forfeiture of profits gleaned from employment of illegal workers.
What can contractors do today to minimize their risk and exposure? First, take appropriate steps to ensure that your paperwork is in order and properly completed. This means that you should conduct a self-audit of your I-9 compliance. If you discover any problems with I-9 forms, fix them as quickly as possible. If you're missing I-9 forms for your employees, get them as quickly as possible. A late completion penalty is far less than the penalty for not having a form at all.
Second, establish policies and procedures that help ensure better future compliance. Implement a comprehensive training program. For contractors that hire on the jobsite, it is especially important that hiring supervisors and managers understand how to properly complete I-9 forms. Consider enrolling in E-Verify if you're not already obligated to do so. If you are ever audited, this can be the best defensive tool at your disposal.
Third, ensure that your subcontractors and other vendors are in compliance also. Often, if ICE discovers a problem with one construction contractor, the investigation will expand outward to cover other contractors with whom the target is doing business. As a result, it is prudent to insist that your subs are in compliance and remain so. It may very well be worth it to provide training to your subcontractors and other vendors.
Finally, document your efforts to maintain good compliance. If ICE shows up, show them that you care and drown them in documentation. If you need help improving I-9 compliance, seek competent counsel rather than contacting the government directly.