The recent announcement that Immigration and Customs Enforcement (ICE) released a second round of 500 Notices of Inspection (NOIs) in June of 2012 signals that the government’s vigorous pursuit of employers who violate federal immigration compliance laws is moving full speed ahead and, in some cases, accelerating. The NOI informs employers that their Forms I-9 will be audited by ICE and requires them to turn over Form I-9 records and related documentation such as payroll ledgers to begin the process of determining employers’ compliance with employment-related immigration laws.

ICE expects to audit more than 3,000 employers in 2012 and has released statistics showing thousands of Form I-9 audits, hundreds of criminal prosecutions, and millions of dollars in civil penalties arising from its operations in 2011. Importantly, these numbers do not reflect the separately issued but no less worrying Notices of Discrepancies and Notices of Suspect Documents sent to companies whose employees are suspected of having used fraudulent documentation during the Form I-9 completion process. If an employee is suspected of document fraud, he must present new and valid documents within a period of days or be terminated. Furthermore, if an employer knows or should have known that an employee was not legally authorized to work in the United States, he/she may be subject to penalties for “continuing to employ” an unauthorized worker.

To mitigate against the risk of immigration compliance liability, employers should conduct periodic internal audits with the support of experienced immigration counsel, and adopt best practices and memorialized standard operating procedures to show good faith compliance practices.