How Can Employers Prepare for Increased ICE Worksite Enforcement?

Employers must immediately strengthen their I-9 compliance processes and prepare for Social Security Administration (SSA) no-match letters to mitigate risks from heightened U.S. Immigration and Customs Enforcement (ICE) worksite enforcement. This heightened vigilance is driven by a new data-sharing agreement between the IRS and the Department of Homeland Security (DHS), providing ICE with additional intelligence on undocumented taxpayers.

What Does the New IRS-DHS Memorandum of Understanding Mean for Employers?

A new Memorandum of Understanding (MOU) between the IRS and DHS creates a formal framework for information sharing. ICE can now provide the IRS with names and addresses of individuals without legal status who have final removal orders or are under criminal investigation. The IRS will then cross-reference this data with its records of taxpayers who use an Individual Taxpayer Identification Number (ITIN), a number issued to individuals who are required to have a U.S. taxpayer identification number but do not have, and are not eligible to obtain, a Social Security Number (SSN).

The resulting information gives ICE a powerful tool to identify companies that may be employing undocumented workers. Based on our assessment experience, this signals a significant shift toward data-driven worksite audits, making robust compliance more critical than ever.

How Can You Ensure Form I-9 Compliance to Minimize Liability?

The cornerstone of defense against an ICE audit is flawless Form I-9 compliance. This form is used to verify the identity and employment authorization of individuals hired for employment in the United States. Attorney Alyson Waite of Benesch advises employers to meticulously adhere to the identity and work authorization requirements.

Key steps include:

• Conducting regular internal I-9 audits to identify and correct errors before a government inspection.
• Ensuring Section 1 of the form is completed by the employee no later than their first day of employment.
• Reviewing documents and completing Section 2 within three business days of the employee's start date.
• Establishing a consistent process for reverifying employment authorization when it expires.

Proactive audits are the most effective way to uncover and rectify common mistakes, such as missing information or improper document acceptance, which can lead to substantial fines.

What Should Employers Do Upon Receiving an SSA No-Match Letter?

Employers should anticipate the revival of SSA no-match letters. These letters are issued when the name or Social Security Number (SSN) reported on a W-2 form does not match the Social Security Administration's records. It is crucial to understand that these letters are not definitive proof of immigration status and should not be used as the sole basis for termination.

A prudent response plan involves:

1. Notifying the employee: Inform the employee about the discrepancy promptly.
2. Requesting verification: Ask the employee to review their personal information for accuracy.
3. Correcting records: If an administrative error is found, correct your records and inform the SSA.
4. Resolving the issue: If the error is with the SSA, advise the employee to contact the local SSA office to resolve it.

Employers must document every step of this process. The goal is to resolve the discrepancy in good faith without violating anti-discrimination laws.

What Is a Comprehensive Worksite Enforcement Preparedness Plan?

A prepared employer has a clear, written plan that goes beyond basic I-9 compliance. This plan should include:

• A designated compliance officer responsible for overseeing I-9 processes and training.
• A protocol for responding to an ICE inspection, including who is authorized to interact with agents and where documents should be stored for quick access.
• A clear termination procedure for employees who are unable to establish continued work authorization after the reverification process.

Ultimately, preparation is your best defense. The key takeaways for employers are to conduct internal I-9 audits immediately, develop a clear response plan for SSA no-match letters, and ensure management is trained on anti-discrimination practices. This proactive approach significantly reduces liability during increased enforcement actions.