ICE Gets Graded By Homeland Security: What does this mean for employers?

by Poyner Spruill LLP

?In February, 2014, the Office of the Inspector General of the Department of Homeland Security (OIG) issued a final report (Report) “grading” Immigration and Customs Enforcement (ICE)’s operations.  The Report found specific deficiencies and contained three recommendations aimed at improving ICE’s worksite enforcement strategy.  This article examines those findings and recommendations and predicts what this means for employers. 

In 2008, 135 employer arrests were made, and from 2003 through 2008, ICE imposed fines of $1.5 million against companies employing illegal workers.  In 2009, ICE revised its strategy to focus on employers who knowingly hire illegal workers, with Congress allocating $531 million between 2009 and 2012 to fund and implement this strategy.  Over that period, ICE conducted 9,140 inspections and issued $31.2 million in civil fines to employers.  While the Report concluded that ICE was generally continuing to pursue its required enforcement administrative inspection process, it found that there was inadequate monitoring and evaluation of performance and outcomes by ICE due to marked inconsistencies between field offices.  For example, some field offices were issuing significantly more warnings than fines.  Some field offices negotiated and settled on reduced fines more than others which the Report said “may have hindered [ICE’s] mission to prevent or deter employers from violating immigration laws.”  Additionally, ICE field offices generally did not document their actions adequately and failed to maintain accurate inspection data, making it difficult to confirm an employer’s compliance.

The Report notes that Homeland Security Investigations (which include ICE) are not random.  Rather, the inspections prioritize critical infrastructure and key resources.  The 18 principal critical infrastructure sectors indentified in the Report are agriculture and food, banking and finance, chemical, commercial facilities, communications, critical manufacturing, dams, defense industrial base, emergency services, energy, government facilities, healthcare and public health, information technology, national monuments and icons, nuclear reactors, materials and waste, postal and shipping, transport and water.

ICE inspects employer’s legal workforce by inspections of its employees’ I-9 forms.  The Report confirmed that ICE field offices initiate an inspection when they receive a tip or headquarters mandates an inspection.  An inspection starts with a Notice of Inspection requiring an employer to produce all its I-9 forms.  The ICE personnel inspect the forms and classify violations as technical or substantive.  The inspection results in either a compliance disposition because no technical or substantive violations were found and no unauthorized workers were identified, a finding that paperwork violations were corrected in a timely manner, or a warning or fine.  The Report identified that more than 50 percent of I-9 forms randomly selected by the OIG for review included substantive errors which should have warranted a fine.  The Report also determined that ICE field offices were setting up their own internal practices of whether to issue a warning or a fine, resulting in little or no consistency between offices. The Report noted that ICE guidance does not include a dollar threshold for issuing a warning rather than a fine. 

The Report also determined that ICE field offices did not always maintain adequate documentation to support inspection results, with the result that headquarters did not have adequate or reliable documentation to verify employers’ compliance post-inspection.  An ICE warning must specify a date for re-inspection of the employer, something a number of field offices were not including.  Since the re-inspection dates were not documented, headquarters had no way of knowing if the field offices were meeting this requirement.

Finally, the Report criticized the information systems used to track inspections and fines, finding that the data was not accurate or up-to-date. Field offices did not consistently update monthly I-9 Inspection Tracking Sheets.

The Report gave three recommendations:

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

ICE was required to respond within 90 days with its agreement or disagreement as to the above recommendations, and provide a corrective action plan and target completion date for implementing the recommendations. ICE agreed with recommendations 2 and 3, committing to implement by September 30, 2014 and December 31, 2014 respectively.  But it disagreed with recommendation 1.  ICE maintained that the discrepancy in enforcement outcome such as issuing a warning as opposed to a Notice of Intent to Fine among field offices is due to “local mission priorities, resources, and local socio-economic characteristic rather than a lack of consistent processes or oversight”.  OIG disagreed with ICE’s reasoning: it found inconsistencies based upon the fact that inspection outcomes at one field office might be based upon the viability and characteristics of an employer’s business whereas different criteria were employed at another field office, such as establishing its own fine amount thresholds.

What does the above mean for employers? The negotiation and settlement of reduced fines will be less frequent; the statutorily set fines will be implemented to ensure greater consistency.  Also, it would seem that issuing fines instead of warnings would further consistency because such a decision removes discretion.  Re-inspection should start to occur post-inspection in a timely manner. Finally, more inspections will occur in regions that historically have had fewer inspections, such as Los Angeles, Miami and New Orleans.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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