It is no secret that President Trump’s ongoing immigration enforcement efforts include dramatic increases in I-9 inspections and worksite investigations. In his most recent budget proposal, President Trump requested funds for 4,600 new ICE (Immigration and Customs Enforcement) personnel. But his proposal also contains funding for new computer systems – including one called HAWke – designed to help ICE and HSI (Homeland Security Investigations) automate the I-9 inspection process. These developments mean it is virtually guaranteed that ICE will be going after employers’ I-9s this year at a level never seen before.
Dealing With The Crush Of I-9 Inspections
President Trump’s new $9.8 billion ICE budget proposal (an increase of almost $2 billion over ICE’s funding for last year) reveals that I-9 inspections and other workplace investigations remain a priority for his administration. HSI has hired 90 Junior Compliance Officers within the past year. And President Trump’s proposed budget for the upcoming fiscal year includes proposed spending to hire new Special Agents, Supervisory Special Agents, Direct Investigative Support Staff, and Mission/Admin Support Staff, as well as other headquarters-based personnel to help shoulder future investigations. Moreover, the budget revealed plans to serve I-9 Notices of Inspection (NOI) via certified mail, relieving Officers from having to make the journey to and from target employers, and saving thousands of work hours in the process.
Traditionally, I-9 inspections have been a manual process, handled at local ICE and HSI offices. The local office dispatches an officer to the headquarters of the intended I-9 inspection target, where the officer asks to see the highest-ranking member of management present at the time. The officer then hands the manager an NOI, which includes a document subpoena seeking a list of documents in addition to the employer’s I-9s, and then returns to headquarters. Once the I-9s and other requested documents are received by ICE, an officer performs a review of the I-9s received. If violations are found, the officer drafts either a Warning Notice, or a Notice of Intent to Fine.
Immigration Enters The Digital Age
In an effort to handle anticipated increases in investigations, the government is turning to computer technology to help process more and larger I-9 inspections. According to the proposed budget, “HSI is undertaking a major effort to automate I-9 Form audits.” To that end, President Trump’s proposed budget request includes money to fund two automated computer systems which will greatly enhance HSI’s audit capabilities, while releasing human resources to conduct additional investigations.
Those two systems are known as “HAWke” and “RAVEn.” The budget notes that HAWke “will greatly enhance HSI’s audit capabilities while releasing resources to conduct additional criminal worksite investigations.” According to the budget, a test pilot of HAWke is anticipated to be rolled out to the field by mid-2020.
President Trump’s budget also mentions spending on a data analytics tool called the Repository for Analytics in a Virtualized Environment (RAVEn) platform, which is designed to increase the velocity of data entry, search, and retrieval in ICE-related operations. The FY 2019 funding level for RAVEn was $18.8 million, and the new budget seeks over $3 million in increased spending on RAVEn.
Recently, RAVEn was able to (i) shorten the time needed to subpoenaed telephone records in one case from over 50 hours (if humans had reviewed the records) down to 30 seconds, and (ii) ingest and process 16 different worksite enforcement audits, comprised of 55,278 individual I-9s, which resulted in a savings of 289 working days, or 2,312 hours. This represents a quantum leap in ICE’s ability to handle more expansive investigations, including I-9 inspections.
“Too Big For an I-9 Inspection” is No Longer a Thing.
Until now, many large employers with employee headcounts in the tens of thousands felt like they were somewhat immune from I-9 inspections because of their size. Word on the street was that ICE/HSI simply did not have the manpower to tackle an I-9 inspection of very larger employers.
Now, with the advent of HAWKe and RAVEn, along with additional officers, it is very likely that the government will be encouraged to turn its sights to larger employers. No company will be too big for an I-9 inspection.
What Should Employers Do Now?
Now is the time to review your I-9s and your compliance policies to minimize exposure should the government show up on your doorstep demanding to see your I-9s. In recent years, I-9 inspections by the government – ICE and HSI – have increased threefold (from 1,360 to 5,981 per year), while worksite investigations have increased even more dramatically (from 1,691 to 6,848 per year).
Potential fines are also increasing – paperwork violation fines can now range between $230 to $2,292 per employee. Civil penalties for knowingly employing hiring or employing unauthorized workers currently range from $573 to $4,586 per employee for the first violation. Second- and third-violation civil penalties can range between $4,586 up to $22,972 per employee. Arrests and criminal convictions for knowingly hiring or employing unauthorized workers are on the rise as well. In all, last year the government issued some $14.3 million in judicial fines, forfeitures and resolutions against employers for I-9 violations.
Because of the increased emphasis on enforcement – and the new digital tools soon to be in the governments arsenal to combat immigration issues – the time is now for you to ensure you are in compliance. We will continue to monitor the status of all immigration-related activity, including further executive actions, and ongoing and future litigation, and publish updates as additional actions are taken, or information is provided, by the federal immigration agencies, the White House, and the judicial system. Please ensure you are signed up for our legal alert system to receive updates about these and other developments.