Main Menu
Print PDF

Recent Shift in Immigration Enforcement Policy Means Higher Scrutiny and Harsh Potential Penalties for Employers

March 9, 2007
by: Robert C. Seiger, III Esq.

Shift in Immigration and Enforcement Policy

The Bureau of Immigration and Customs Enforcement (ICE) is charged with enforcing federal immigration law and prosecuting employers who unlawfully hire or continue to employ illegal aliens.  Until recently, ICE’s enforcement efforts concentrated on arresting illegal aliens and pursuing administrative penalties against their employers.  Over the past year, however, ICE has become much more aggressive in its enforcement efforts. 

Across the country, ICE investigations are underway as the government pursues a new policy of focusing on employers, rather than just illegal employees.  Industry specific ICE raids are becoming more commonplace as government agents pursue not only illegal employees but also the executives and managers responsible for hiring them.  Prosecutions are being pursued even where the aliens work through independent contractors.  Where paper-work violations were once the extent of its enforcement efforts, ICE is now building comprehensive cases against employers and aggressively pursuing penalties including civil fines and jail time.   

How Employers Can Protect Themselves

These recent ICE raids and increased prosecution efforts have underscored the importance of the need for an air-tight I-9 process.  Often, proof that employment verification documents were properly scrutinized in accordance with regulatory requirements is the best defense against potential illegal hiring charges.  It is recommended that all employers develop the appropriate protocols for and regularly schedule an I-9 Self-Audit. This Self-Audit should include a regular review of all I-9’s on file to reveal and resolve potential problems with current I-9 processes. 


  1. Centralize the I-9 process.  Assign one or two highly trained employees to handle all I-9 forms.  Keep all I-9’s in a file separate from employee and company records.

  2. Ensure that employees present only original documents when completing I-9 forms.  In very limited circumstances may a receipt indicating an original document has been requested be substituted for the document itself.   

  3. Photocopy the front and back of all identification documents presented by employees.  Proof that a forgery was undetectable may present a defense should the government determine the documents are fraudulent.

  4. Avoid immediate termination if an employee reveals he does not yet have his Social Security Number.  Termination on that basis could violate federal anti-discrimination laws. 

  5. Establish a system for destroying old I-9 forms.  In most instances a record may be purged 3 years after the date of hire or 1 year after termination, whichever is later.

  6. Do not ask employees to renew Permanent Residency cards.

  7. Draft employee regulations, handbooks and company policies which clearly state that I-9 fraud will result in termination.

  8. If in receipt of a Social Security Administration “no-match” letter, seek the advice of legal counsel.  Unless an employer completes a re-verification process, the receipt of a no-match letter may be used to demonstrate that the employer knowingly employed an unauthorized alien in violation of federal law.

  9. Always provide employees with all 3 pages of the I-9 form.  If an employee is found to have incorrectly or fraudulently completed the form, providing all three pages may prevent a claim that they were not properly instructed.

  10. During a self-audit of I-9 records, errors should be corrected and any changes initialed and dated.  Do not backdate forms.

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
Back to Page