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Ethics Corner 

DHS Expands Monitoring of Federal Contractors 


By Dawn M. Lurie 

On Feb. 17, Immigration and Customs Enforcement, the principal investigative arm of the Department of Homeland Security, began issuing 1,000 notices of inspection nationwide to verify that employees were eligible to work in the United States.

This initiative includes a sharp focus on employer compliance along with higher fines for those hiring undocumented workers.

Considering the high stakes, those employers not receiving a notice should take steps to ensure compliance before additional rounds of audits commence, as expected, during this calendar year.

Selection of companies is not arbitrary; notices were issued based on tips and leads from the public or other government agencies. No one industry is immune and the size of the company did not play into the selection criteria for an investigation.    

The administration continues to make it clear that the days when immigration compliance could be ignored and considered the “cost of doing business” are over.  

ICE is assertively pursuing targets of convenience, to the extent that administrative reviews have actually become lucrative for the agency. Non-compliance brings fines ranging from $110 to $16,000 per violation, a loss of reputation, potential federal contract debarment and large sums of money spent on internal reviews and legal fees.  

In fiscal year 2010, ICE’s worksite division debarred 235 persons and businesses, a number now growing because of the agency’s recent expansion in debarment outside of the worksite area. Initial success has led DHS headquarters to expand debarment beyond certain employment immigration related violations of the Immigration and Nationality Act, to include all worksite matters, investigations resulting in indictments and other criminal convictions.

Other factors now relevant include crimes relating to counter-proliferation, intellectual property rights, commerce regulations and customs violations and any federal contractor/subcontractor irregularity.

Although not formally announced, the monitoring and compliance branch will expand its outreach activities. During the past year, it has sent employers letters where E-Verify — the Internet-based database that allows employers to check the immigration status of employees — believed there were issues relating to use of the system. For example, late filings were questioned, multiple invalidated queries and other potential issues were noticed and recorded.
Companies must implement their own procedures to ensure E-Verify is monitored internally. Do not wait until the government knocks at the door. E-Verify system internal audits are a best practice that averts heartache.   

The bottom line: businesses that take proactive steps to ensure compliance will avoid serious consequences. Actions taken before a government-initiated audit or investigation generally help mitigate damages, reduce exposure, and in the long run, save both time and money.

Before or after receipt of a notice of inspection, engaging experienced immigration compliance expertise is time well spent. The good news is that employers that make this effort will be recognized for promoting a culture of workplace compliance.

Consider these best practices:
  • Establish and maintain a comprehensive immigration compliance policy.
  • Conduct in-house audits of Form I-9 documents and company policies, as well as E-Verify, if applicable. Carefully decide on how these audits will be conducted, considering phases, samplings and other dividers.
  • Establish and keep updated simple, clearly written policies, protocols, and training for employment verification. Remember having a “paper” policy at odds with actions invariably causes more harm than good.  
  • Diligently authenticate the identity of job applicants to ensure that they “are who they say they are.”
  • Consider use of E-Verify and other government-advocated best practices, after consultation with your attorney.
  • Establish protocols to address non-traditional Social Security no-match situations.
  • Establish and maintain safeguards to prevent the I-9 process from inadvertently and unlawfully discriminating. Ensure your team is well versed in your policy.
  • Create a protocol for immigration compliance related to contractors, subcontractors and vendors. Draft specific language for contracts that ensures that partner companies have their own processes in place for compliance.
Dawn M. Lurie is a shareholder ( with the international law firm of Greenberg Traurig LLP. The views expressed are solely those of the author.

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