This is a frequently asked question from employers these days, and the answer is far from clear. In general, ICE conducts I-9 investigations of employers based upon credible leads, which may consist of complaints from disgruntled employees, tips from the public or cases having national security or public safety implications (e.g., employers at airports have been known to be targets). In addition, ICE may also initiate I-9 audits based upon referrals from other government agencies that may have investigated an employer in an unrelated matter. For example, there is a recent article posted on SHRM’s website where attorneys Mary Pivec and Kevin Lashus discuss how the latest round of I-9 investigations may have stemmed (in part) from intelligence gathered by the Department of Labor’s Wage and Hour Division. Lastly, ICE has also been known to target certain employers, most notably those in construction, hospitality, retail and other industries with high turn-over and frequent reports of undocumented workers.
Penalties from worksite enforcement inspections have increased five-fold in Fiscal Year 2010 due in large part to increased employer scrutiny and several waves of I-9 audits. While the total number of fines and penalties is a constantly moving target, here are the latest statistics from ICE: