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Federal Government Expands Enforcement of Immigration, I-9 and E-Verify Rules

Immigration Update Eric D. Ledbetter, Maria F. Kallmeyer, Grant Sovern, Lisa D. Duran

The federal government has recently announced several new initiatives to curb the employment of undocumented workers and promote good I-9 and E-Verify practices. Although the initiatives are aimed primarily at employers who knowingly employ undocumented workers, all employers are encouraged to take this opportunity to evaluate their policies and procedures and to make sure they are in full compliance with federal rules. Under the Obama administration, the U.S. Department of Homeland Security ("DHS") has largely abandoned the use of high-profile workplace raids in favor of paperwork audits and undercover investigations designed to identify subtle and perhaps more widespread immigration violations.

The new federal enforcement initiatives include:

  • Massive Increase in I-9 Audits. In July, federal authorities initiated I-9 audits of more than 650 employers around the country, and additional audits are likely to follow. The Form I-9 is the document that all employers must complete to verify the work eligibility of all new employees. According to DHS, there were more I-9 audits in July of this year than in the entire previous year, under the previous administration. During an I-9 audit, federal agents examine I-9 forms and supporting documents as well as general business documentation, including wage and hours reports, federal and state tax filings, business licenses, a company's written I-9 compliance policy and any evidence of compliance training for the company's HR staff. Since a company has only 72 hours to respond to a typical I-9 audit notice, employers are strongly encouraged to review their I-9 documentation ahead of time.
  • Continuation of Federal E-Verify Rules. DHS recently announced it will implement a federal rule adopted by the Bush administration, requiring federal contractors to use the government's E-Verify database to confirm the work authorization of all new employees and certain existing employees. The rule will likely take effect on September 8, 2009 and will become mandatory only after the E-Verify language is inserted by the government into a company's federal contract. Quarles & Brady will issue an alert when the federal government publishes the final rule.
  • Social Security No-Match Letters. The White House has announced it is dropping the controversial No-Match rule, first published in 2007. Under the rule, when an employer received a No-Match letter from the Social Security Administration (SSA), pointing out a discrepancy between an employee's name and social security number, the employer could only protect itself from fines if it took a number of steps that included informing the employee, requiring the employee to obtain proof that s/he resolved the discrepancy with SSA and, if the employee couldn't resolve the discrepancy within a certain number of days, to terminate the employment. The rule was immediately challenged in 2007 and has been on hold, pending litigation, ever since. While the White House has announced plans to abandon the rule, the Senate recently passed a measure that would require its implementation and enforcement. Whether or not the rule survives, employers are still advised to take measured, appropriate action in response to a No-Match letter to avoid any appearance of the knowing employment of an unauthorized alien. The SSA suspended issuing No-Match letters, pending the outcome of the rule, but will likely start sending them again in the future. While suspension of the rule removes a drastic path to follow, employers are again left with little specific direction from the government on how it expects employers to treat these letters.

  • Creation of Immigration Benefit Compliance Unit. DHS has recently publicized a new unit within U.S. Citizenship and Immigration Services, called the Fraud Detection and National Security Unit, aimed at verifying information provided in immigration petitions and applications. Like many of the new enforcement provisions, this one also is aimed primarily at employers who knowingly provide incorrect information. However, all employers should be aware that adjudicators from this unit are conducting occasional site visits to confirm the existence of companies and verify the accuracy of the information provided in their petitions and applications. If one of these adjudicators arrives at or calls your office to conduct a site visit, please remember that it does not mean you did anything wrong, and do call us as quickly as possible.

If you have questions about your immigration, I-9 and E-Verify compliance programs or need help in conducting a self-audit of your documentation, please contact a member of our Quarles & Brady immigration team, Eric Ledbetter (Chicago) at 312-715-5018 / eric.ledbetter@quarles.com, Maria Kallmeyer (Chicago) at 312-715-5009 / maria.kallmeyer@quarles.com, Grant Sovern (Madison) at 608-283-2668 / grant.sovern@quarles.com, Lisa Duran (Phoenix) at 602-229-5225 / lisa.duran@quarles.com or your Quarles & Brady attorney.