Following California Governor Jerry Brown’s signing of sanctuary laws in October 2017, the state has been targeted for a major ICE sweep to arrest undocumented individuals. ICE Director Thomas Homan stated that because California’s sanctuary laws nearly eliminate all cooperation with state law enforcement partners, ICE actions “will inevitably result in additional collateral arrests, instead of focusing on arrests at jails and prisons where transfers are safer for ICE officers and the community.”

Accordingly, in January 2018, ICE issued Notices of Inspection (NOIs) to 77 companies in Northern California. Then, in a five-day period during the week of February 12, 2018, ICE made 212 arrests and issued 122 NOIs to companies in Southern California in the Los Angeles area. Of those arrested, Homan said that “88 percent . . . were convicted criminals.” Those who were issued NOIs regarding their I-9 processes had three days to prepare for the inspections on their compliance with federal employment verification laws. Findings of failure to comply result in civil fines and possible criminal prosecution for knowing law violations.

ICE has not been constrained in its issuance of penalties to employers or in its deployment of agents to actively audit employers. Since September 2017, ICE assessed one of the largest fines in its history and has conducted raids nationwide. Asplundh Tree was assessed a $95 million penalty and ICE served audit notices on 98 7-Eleven franchises and conducted raids that led to more than 20 arrests.

California, of course, is not the only enforcement target. Here are ICE’s own statistics for fiscal year 2017:

  • Conducted 1,360 I-9 audits
  • Made 139 criminal arrests, and 172 administrative arrests
  • Ordered businesses to pay $97.6 million in judicial forfeiture, fines, and restitution and $7.8 million in civil fines.

These statistics reflect the first two prongs of ICE’s three-pronged enforcement process:

  • I-9 inspections and civil fines;
  • Arrests of employers and unauthorized workers; and
  • Outreach through the IMAGE Program.

ICE’s IMAGE Program trains and certifies employers who can serve as role models for other employers. Employers seeking certification must agree to:

  • Complete the IMAGE Self-Assessment Application
  • Sign an IMAGE partnership agreement
  • Enroll in E-Verify within 60 days
  • Establish a written hiring and employment eligibility verification policy
  • Conduct yearly I-9 self-audits
  • Submit to an initial I-9 inspection

In return for certification, ICE agrees to:

  • Waive potential fines if substantive violations are discovered on fewer than 50% of the Form I-9s
  • If more than 50% of Forms have substantive violations, mitigate fines
  • Not conduct another inspection for two years
  • Provide information and training before, during, and after inspection

In this era of increasing enforcement efforts, consult your Jackson Lewis attorney regarding I-9 self-audits, I-9 processes and whether enrollment in the IMAGE Program (and E-Verify) makes sense for your company.