DHS Orders ICE to Cease Mass Worksite Enforcement Operations

Form I-9 Updates

Written By ESR News Blog Editor Thomas Ahearn

On October 12, 2021, the U.S. Department of Homeland Security (DHS) issued a memorandum titled “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual” that, among other things, ordered the U.S. Immigration and Customs Enforcement (ICE) to cease mass worksite operations and instead focus on employers who exploit undocumented workers.

“Our worksite enforcement efforts can have a significant impact on the well-being of individuals and the fairness of the labor market. Our accomplishments in this area make clear that we can maximize the impact of our efforts by focusing on unscrupulous employers who exploit the vulnerability of undocumented workers. Their culpability compels the intense focus of our enforcement resources,” the DHS explained in the memorandum.

“The deployment of mass worksite operations, sometimes resulting in the simultaneous arrest of hundreds of workers, was not focused on the most pernicious aspect of our country’s unauthorized employment challenge: exploitative employers. These highly visible operations misallocated enforcement resources while chilling, and even serving as a tool of retaliation for, worker cooperation in workplace standards investigations,” the DHS said.

The memorandum from DHS Secretary Alejandro Mayorkas also indicated that mass worksite operations were inconsistent with the Department’s Guidelines for the Enforcement of Civil Immigration Law that were announced on September 30, 2021, and the individualized assessment they require. Given these concerns, the DHS wanted to ensure it no longer conducts mass worksite operations and has refocused its workplace enforcement efforts.

“We will not tolerate unscrupulous employers who exploit unauthorized workers, conduct illegal activities, or impose unsafe working conditions.  Employers engaged in illegal acts compel the focus of our enforcement resources.  By adopting policies that focus on the most unscrupulous employers, we will protect workers as well as legitimate American businesses,”  DHS Secretary Mayorkas stated in a press release about the memorandum.

In December 2018, ICE – a federal law enforcement agency under the DHS that enforces the laws governing American border control – announced that worksite enforcement investigations of Form I-9 compliance made by ICE surged in fiscal year (FY) 2018 following the agency’s commitment to increase Form I-9 audits in the United States to encourage employers to comply with the Immigration Reform and Control Act of 1986 (IRCA).

ICE is responsible for upholding laws established by the IRCA that require employers in the U.S. to complete the “Employment Eligibility Verification Form I-9” for newly-hired employees to verify their identity and authorization to work in the country. The DHS and ICE recently announced an extension of the flexibilities in Form I-9 compliance rules due to the COVID-19 pandemic – which were set to expire on August 31, 2021 – to December 31, 2021.

The DHS first announced it would defer the physical presence requirements of the Form I-9 on March 20, 2020. The policy was implemented for 60 days and set to expire on May 19, 2020. The DHS extended it for 30 days four times to June 19, 2020, July 19, 2020, August 19, 2020, and September 19, 2020. The policy was then extended to November 19, 2020, December 31, 2020, January 31, 2021, March 31, 2021, May 31, 2021, and August 31, 2021.

Employment Screening Resources® (ESR) – a leading global background check provider that was ranked the number one background check firm by HRO Today in 2020 – provides a robust solution that simplifies the Form I-9 process enabling employers to compliantly verify work status and electronically capture and retain required Form I-9 information without redundant data entry. To learn more about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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