Customs Enforcement's I-9 Audits Will Increase by 400 Percent in Fiscal Year 2018 - Articles

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Posted by: Bruce Buchanan on Jun 19, 2018

As I have discussed numerous times in this blog, Immigration and Customs Enforcement (ICE), under the Trump administration, has significantly increased I-9 inspections/audits of employers to verify that their employees are authorized to work in the country and determine whether substantive paperwork violations have occurred. Now, we have statistics which substantiate the heightened activity of ICE in worksite enforcement. 

FY 2018 Statistics on ICE Audits

Between October 1, 2017, the beginning of fiscal year 2018, and May 4, 2018, there have been 2,282 ICE audits of employers’ I-9 forms while in the prior fiscal year, October 2016 and September 2017, there were 1,360 audits. Derek Benner, head of ICE's Homeland Security Investigations unit, said another nationwide wave of audits, like the ICE audits of 7-Eleven in January 2018, planned this summer, would push the total number of audits to "well over" 5,000 by the end of the fiscal year, September 30, 2018. If so, that would be almost a 400 percent increase from fiscal year 2017 and highest number of ICE audits ever. ICE audits, as we know them today, started in George W. Bush’s administration. ICE audits previously peaked at 3,127 in 2013.

ICE’s Plan for 15,000 ICE Audits Per Year

According to Benner, ICE has developed a plan to conduct as many as 15,000 I-9 audits a year if it can receive appropriate funding and support from other areas of the Trump administration. The plan calls for creation of an Employer Compliance Inspection Center to perform employer audits at a single location instead of at regional offices around the country. Benner said that putting up to 250 auditors in one center with the right technology and a team of attorneys to quickly levy fines would enable his agency to audit between 10,000 and 15,000 companies annually. 

Benner stated one of the goals of this proposal is to create a "reasonable expectation" among employers that they will be audited.  "This is kind of our vision of creating this culture of compliance," he said. "I think it's a game-changer."

The plan also proposes changing the manner of delivery of the ICE Notice of Inspection (NOI) from in person to email or certified mail. Furthermore, after an initial review, by electronically scanning the I-9 forms for suspicious activity, the most egregious cases will be sent to regional offices for more in-depth investigation. 

Benner said the agency will focus both on criminal cases against employers as well deporting employees who in the country illegally.The statistics show there were 594 employers arrested on criminal work-related immigration charges from October 1 to May 4, up from 139 during the previous fiscal year. 

Deportation Numbers in Worksite Enforcement Will Rise

The deportation numbers will certainly increase due to this worksite enforcement as ICE has begun to detain employees listed on the Notice of Suspect Documents. Prior administrations did not detain undocumented workers on theNotice of Suspect Documents which lead many undocumented workers to quit one employer and find work down the road with another employer. As Brenner and many other immigration officials have stated, hiring undocumented workers creates unfair advantages for companies, encourages people to come to the U.S. illegally, results in document and identity fraud, exposes workers to potentially dangerous conditions without proper equipment, and leads to failure to pay overtime pay.

ICE Raids

Not only have ICE audits drastically increased, but now ICE has returned to conducting ICE raids. The first raid occurred in April 2018 at a meat slaughterhouse in Bean Station, Tennessee while the second one was in June 2018 at Corso’s Flower and Garden Center in Sandusky, Ohio and Castalia, Ohio. Both raids led to about 100 employees being detained by ICE.

Bean Station ICE Raid

The Bean Station raid hit very close to home. If you wonder how Southeastern Provisions, a slaughterhouse, got onto ICE’s radar, the answers lie in a 26-page affidavit from an IRS Special Agent filed in federal court to obtain a criminal search warrant. gives insight as to what led to the IRS’s involvement in the raid.  It was due to probable cause to believe the company violated federal law by filing false tax returns, willfully failing to collect federal employment taxes, and evading the assessment and payment of other federal employment taxes.  

According to the affidavit, federal authorities were originally tipped off by bank employees about large cash withdrawals from Citizens Bank in Morristown made by management/owners of Southeastern Provisions. When bank employees questioned the transactions, the affidavit said they were told the cash was used for payroll. Investigators say $25 million in cash was withdrawn from the bank accounts beginning in 2008. Thereafter, for an unknown reason, bank officials toured the slaughterhouse in December 2016 and they were told by management that most of their employees were Hispanic and paid weekly in cash.

On IRS forms, Southeastern Provisions reported only 44 employees to the government. But based on aerial surveillance, 87 vehicles were found parked at the plant, leading authorities to believe the plant was employing 30-40 more undocumented immigrants. Using numbers from the investigation, the government estimated if Southeastern Provisions had properly reported wages to the IRS, they would have an additional $2.5 million payroll taxes from 2013-2016 on top of what they had already paid.

Takeaways

If these heightened I-9 audits by ICE and ICE raids frighten you, then now is the time to be vigilant in immigration compliance. I would advise employers to meet with their immigration counsel, or obtain immigration counsel, to conduct an internal I-9 audit and draft or review an immigration compliance policy. If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available here.


— Bruce E. Buchanan is the founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta. He is also “Of Counsel” to Siskind Susser PC on employer immigration compliance matters. Buchanan is a graduate of Vanderbilt University School of Law. He may be reached at (615) 345-0266.