The trend of increased worksite enforcement by Immigration and Customs Enforcement (ICE) officials is expected to continue. Although the purpose of the worksite enforcement is to reduce demand for workers who are not authorized to work in the United States, employers whose entire workforce is authorized to work can still face substantial fines for paperwork violations that are discovered during a worksite enforcement procedure. US employers are required to verify the identity and employment authorization for every worker they hire after November 6, 1986, regardless of the employee’s immigration status. To comply with the law, employers must complete Form I-9, Employment Eligibility Verification. ICE’s enforcement process typically includes reviewing Form I-9s. When the forms are incorrect, or show evidence that certain employees are not authorized to work in the United States, employers are subject to civil or criminal fines. Because worksite enforcement has been effective in identifying unauthorized workers and generating the collection of fines by the government, it is expected to continue. In view of this increased enforcement, it may be advisable for employers to review their I-9 compliance through an internal audit and update the training of the individuals completing the I-9 Forms on behalf of the employer through a review of the revised Handbook for Employers regarding completion of the Form I-9s that was released in January 2011 (available at http://www.uscis.gov/files/form/m-274.pdf.)

Employers are expected to face more immigration-related employment discrimination charges in 2011. The US Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently announced public education campaign funding to fight immigration-related employment discrimination, which includes citizenship and national origin discrimination. The funding will support victims of such discrimination, which may increase such complaints and investigations. In view of the plan to facilitate increased enforcement action against immigration-related discrimination, employers may want to review their anti-discrimination policies with regard to such practices as hiring and termination.

For further information, please contact the Arent Fox attorney with whom you work or a member of Arent Fox’s International Trade Practice Group.