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EMPLOYER CLIENT ALERT: September 2009 Immigration Audits on the Rise The U.S. Immigration and Customs Enforcement (“ICE”) Department, responsible for enforcing the nation’s immigration laws, is auditing Employers across the country to ensure that employees are legal. This initiative is a first step in ICE’s long term strategy to address and deter illegal employment. More than 600 audit notices have been issued to date, twenty (20) of which were received by New Jersey employers. Inside investigations, as well as tips from outsiders, lead to the selection of those targeted in this most recent round of audits. New Jersey Employers need to be aware that all Employers are required to verify the employment eligibility of individuals hired after November 6, 1986. Under the Immigration Reform and Control Act of 1986 (“IRCA”), Employers must require applicants to both show proof of their employment eligibility and complete the I-9 Form. The Employer must then examine the documentation and verify the identity and employment eligibility of all employees. By way of background, ICE is concerned about the presence of undocumented workers who have secured jobs by fraudulent means, including presentation of false documents, completion of fraudulent benefit applications and theft of identities. Accordingly, a typical ICE audit will involve the inspection of hiring records to determine whether the Employer has employed illegal immigrants. Employer penalties range from $100 to $11,000 for each illegal employee. An Employer who has a practice of hiring illegal foreign nationals may also be subject to imprisonment for up to six (6) months. In 2007, ICE instituted a program called the ICE Mutual Agreement between Government and Employers (“IMAGE”) program to assist Employers in targeted sectors to develop a more secure and stable workforce and to enhance fraudulent document awareness through education and training. Employers who voluntarily enter into the arrangement will receive support and training from ICE to help them come into compliance with IRCA. The Employer must agree to submit to an ICE audit. Information about the program can be obtained by logging on to http://www.ice.gov/partners/opaimage/. BOTTOM LINE: Employers must insure that every new employee completes the I-9 Form, and each employee’s file contains that documentation. If you are an Employer who is unsure of your obligations under IRCA, or who is otherwise concerned about immigration issues, consult with your employment counsel, preferably before receipt of an immigration audit notice. The Employment and Labor Practice Group
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