On February 18, 2011, Ross Feinstein, the public affairs officer for the United States Immigration and Custom Enforcement agency ("ICE") stated in an email that the agency had issued notices of inspection to 1,000 employers across the country and that it would inspect their hiring records. ICE will inspect employers of all sizes and in all states. Mr. Feinstein emphasized that no industry would be immune from inspections nor would any particular industry be targeted. Despite Mr. Feinstein's statement, resorts, hotels and other hospitality employers should assume they could be audited given the number of immigrants employed in the industry.
This marks a continuation of the recent practice of ICE of targeting employers for immigration violations. ICE announced that it would audit an additional 650 firms in July of 2009. In November 2009, another 1,000 audits were announced and in March and September of 2010, ICE announced 200 and 500 more notices of inspection, respectively.
ICE has stated previously that in its view, or at least that of the present Administration, effective worksite enforcement plays an important role in the fight against illegal immigration, and therefore, ICE developed a "comprehensive worksite enforcement strategy that targets employers who violate employment laws or engage in abuse or exploitation of workers." In worksite cases, ICE investigators will look for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering and other such criminal conduct. ICE also investigates employers who employ force, threats or coercion (for example, threatening to have employees deported) in order to keep the unauthorized alien workers from reporting substandard wage or working conditions. To uncover and deter such activities by employers, ICE will seek indictments, criminal arrests or search warrants, or a commitment from a U.S. Attorney's Office to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite. This clearly fits with the current administration's decision to target employers while largely ignoring the undocumented workers' culpability.
However, according to immigration rights groups, it is not clear that the agency is actually focusing its efforts on or targeting these abusive employers, and the February 18, 2011 announcement suggests that ICE will continue to be indiscriminate with respect to those employers it audits. Thus, even those employers who are diligent in their efforts to comply with I-9 verification procedures will not be spared from the disruption and costs associated with audits.
Given that this Administration will likely continue with its current worksite investigation program in an effort to persuade Congress to go along with its proposed "comprehensive" immigration reform, we would advise our clients, particularly our hospitality and resort clients, to have counsel review their I-9 procedures to ensure that they comply with the law and avoid civil and potentially criminal liability, and reduce the time and money lost as a result of an audit. Additionally, we recommend our hospitality and resort clients consider establishing a contingency program so that they can fully operate should a workplace audit reveal that a significant number of the client's workforce is not authorized to lawfully work in the United States.