By: Bruce Buchanan, Sebelist Buchanan Law



AILA just finished a successful Worksite Enforcement Conference in beautiful Park City, Utah. The conference was filled with great sessions where the speakers covered many of the hot topics of worksite enforcement. I was privileged to be on a panel with Kimberly Best Robidoux, Sharon Mehlman, and Jeff Joseph.

One of the highlights of the conference was the lunch time speakers - Scott McCormack, National Program Director of ICE’s Worksite Enforcement Unit, and Albert Ruisanchez, Deputy Special Counsel of the Immigrant and Employee Rights Section (IER) of the Department of Justice’s Civil Rights Division. In the article I will cover the highlights of Mr. McCormack’s presentation.

According to Mr. McCormack, agents of Homeland Security Investigations (HSI) are “criminal investigators.” This is important to remember every time your client receives a Notice of Inspection (NOI)/subpoena because that could become a criminal investigation.

Mr. McCormack said criminal arrests are way up while civil fines are up largely due to defective electronic I-9 forms, which did not meet government standards. Mr. McCormack reminded the audience of lawyers that if an employer changes their electronic I-9 vendor, it must still have access to the original I-9s and audit trail. One of the problems that HSI regularly faces with electronic I-9s is the HR manager is completing Section 1 – reserved for employees to complete and Section 2. HSI can determine this by analyzing the audit trail.

Mr. McCormack was asked when the next round of NOIs would be issued and he stated some regions may see more NOIs in late September if they are below their target numbers for the fiscal year (which ends in September 30, 2019.) McCormack also said he expected higher number of NOIs in FY 2020 than in FY 2019.

As for who should and should not be targeted, Mr. McCormack said ICE/HSI should not be targeting hospitals and airline pilots. He said this was just a waste of resources by ICE/HSI (on a personal note, I agree and have been befuddled why two of my hospital clients have been chosen for ICE audits.)

Mr. McCormack said ICE audits and raids protect American jobs and wages. He pointed out that wages are up $1 to $2 an hour and more U.S. workers are being hired at the Mississippi poultry plants which ICE raided in August 2019. Additionally, Mr. McCormack commented on the raided poultry plants and stated employees were using stolen identities although the employers were using E-Verify. He said E-Verify was not perfect because it used algorithms, and publicly available data bases, not SSA databases.

Mr. McCormack pleased the immigration attorneys when he stated the following:
  • ICE would not fine an employer for employing a TPS recipient whose EAD expired where the employee had an automatic extension, which was not documented on the I-9 form;
  • Employees should be able to make corrections on their I-9 forms between the time of receipt of an NOI and time I-9 forms are received by ICE;
  • Employers, who take the paper I-9 forms and scan and store them electronically and not retain the paper I-9 forms, are in fine shape to do so as long as digitized/scanned I-9 forms as long as the I-9 forms cannot be changed or altered;
  • ICE will be issuing a template of a Notice of Inspection/Subpoena so that all offices will be using the same language; and
  • The template will not include language to bar changes to I-9 forms.
For answers to many other questions related to employer immigration compliance, I invite you to read our new book, The I-9 and E-Verify Handbook (2d ed.), co-authored by Greg Siskind, which is available at http://www.amazon.com/dp/0997083379.