On January 10, 2018, U.S. Immigration and Customs Enforcement (ICE) released a statement detailing a new, comprehensive worksite enforcement strategy that incorporates: (i) increased Form I-9 audits; (ii) more unannounced worksite raids; and (iii) promotion of an undersubscribed, voluntary compliance program created in 2006 known as IMAGE [ICE Mutual Agreement and Employers program].  The ICE statement also heralded the conclusion of a six-year ICE investigation that led Asplundh Tree Experts, Co. (Asplundh) to plead guilty on September 28, 2017, to a criminal count of unlawfully employing undocumented workers.  As part of the plea agreement, Asplundh received a court-imposed sentence requiring it to pay a forfeiture money judgment in the amount of $80 million and an additional $15 million to satisfy civil claims arising out of Asplundh’s failure to comply with federal employee eligibility laws in its employment practice of knowingly hiring undocumented workers.  Prior to this conviction, the often ICE-touted “record settlement” of $20.7 million was paid in 2006 by Systems North America Inc.

By highlighting its new enforcement program and the Asplundh record fine, ICE has sought to put all employers on notice that regardless of their size, ICE (in a departure from recent practice) will be proactive in its enforcement of federal employment eligibility requirements.

Employers should take note that ICE’s approach to worksite enforcement has three general features: (i) compliance through Form I-9 inspections; (ii) enforcement through the arrest of unauthorized workers and complicit employers knowingly violating employment eligibility laws; and (iii) outreach through promotion of the IMAGE program, a program that through today’s date can only count approximately 287 IMAGE-certified employers.

Given ICE’s new priorities, further highlighted by its January 10, 2018, raid on 100 stores in 17 states, employers should proactively adopt the compliance program adopted by Asplundh, as disclosed through public court filings, including:

• Appointment of an I-9 Form compliance specialist trained in fraudulent document identification in each region where an employer has operations

• Revision of hiring procedures to verify each identification document for every new hire

• Investigation of every complaint of potentially undocumented workers

• Retention of a third-party consultant to review company hiring practices and procedures, and

• Presentation of a company compliance program through IMAGE for ICE review

IMAGE-participating employers first complete a self-assessment questionnaire, enroll in the E-Verify program, establish a written hiring and employment verification program for ICE review, and submit to a companywide Form I-9 audit.  As part of the program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring practices and fraudulent document detection.

Civil penalties for knowingly employing unauthorized immigrants can range from $539 to $21,563. Repeat offenders and companies hiring a larger number of undocumented employees receive fines on the higher end of the range. Form I-9 paperwork violations carry a penalty of $216 to $2,156 per worker.