Secretary Janet Napolitano has released the U.S. Department of Homeland Security’s Strategic Plan for Fiscal years 2012-2016. The plan, released on February 13, outlines broadly the Department’s missions and goals to align program activity to better serve the public. More importantly, the plan revisits mission performance benchmarks and projects how those benchmarks will change as the Department “successfully” implements its objectives.
Employers should be interested especially in the third “primary” mission of the Department: Enforcing and Administering Our Immigration Laws. The Department emphasizes its commitment to reducing the demand for illegal immigration by eliminating conditions that encourage unauthorized employment. In order to meet that objective, the Department predicts that over the course of the next four fiscal years, it will initiate nearly double the number of criminal prosecutions of employers for criminally hiring unauthorized employees—from 296 this past fiscal year to 478 employers arrested or sanctioned in the current fiscal year (through nearly 600 employers by the end of FY 2016). It will do so by increasing the number of administrative I-9 audits, by further perfecting the intelligence sharing capability of its member bureaus, and by continuing to support the roll-out of E-Verify and IMAGE initiatives that encourage employers to transmit sensitive employee information to government databases. Thus, the risks of faulty compliance have never been greater.
Employers should consult with compliance counsel to review the protocols and to sample I-9s to ensure any compliance failures are quickly remedied. They should not trust to chance that systems they have instituted will work as planned. The best defense to allegations of criminal violations is a robust internal (attorney-supervised) audit. The government credits employers who pro-actively address failures and institute compliance protocols. In other words, an employer need not be perfect to protect against criminal investigation, but needs to know enough to seek assistance.