oversight

ICE Guidance Needs Improvement to Deter Illegal Employment

Published by the Department of Homeland Security, Office of Inspector General on 2021-01-15.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

ICE Guidance Needs
Improvement to Deter
Illegal Employment




                January 15, 2021
                      OIG-21-15
                  OFFICE OF INSPECTOR GENERAL
                      Department of Homeland Security
                        Washington, DC 20528 / www.oig.dhs.gov


                                January 15, 2021

MEMORANDUM FOR:         Tae D. Johnson
                        Senior Official Performing the Duties of the Director
                        U.S. Immigration and Customs Enforcement

FROM:                   Joseph V. Cuffari, Ph.D.                 Digitally signed by JOSEPH
                        Inspector General
                                                 JOSEPH V        V CUFFARI
                                                                 Date: 2021.01.13 13:10:10
                                                       CUFFARI   -05'00'

SUBJECT:                ICE Guidance Needs Improvement to
                        Deter Illegal Employment

Attached for your information is our final report, ICE Guidance Needs
Improvement to Deter Illegal Employment. The report identifies actions the U.S.
Immigration and Customs Enforcement (ICE) can take to enhance its Worksite
Enforcement program’s overall effectiveness. We incorporated the formal
comments provided by your office.

The report contains four recommendations aimed at improving the program’s
overall effectiveness. Your office concurred with all four recommendations.
Based on the information provided in your response to the draft report, we
consider the four recommendations resolved and open. Once your office has
fully implemented the recommendations, please submit a formal closeout letter
to us within 30 days so that we may close the recommendations. The
memorandum should be accompanied by evidence of completion of the
corrective actions. Please send your response or closure request to
OIGAuditsFollowup@oig.dhs.gov.

Consistent with our responsibility under the Inspector General Act, we will
provide copies of our report to congressional committees with oversight and
appropriation responsibility over the Department of Homeland Security. We
will post the report on our website for public dissemination.

Please call me with any questions, or your staff may contact Thomas Kait,
Acting Assistant Inspector General for Audits, at (202) 981-6000.

Attachment

cc:   Derek N. Benner, Executive Associate Director, Homeland Security
Investigations
                                     DHS OIG HIGHLIGHTS
                                ICE Guidance Needs Improvement
                                   to Deter Illegal Employment

January 15, 2021                          What We Found
                                          The WSE program’s compliance, civil enforcement,
Why We Did                                and outreach activities are not as effective as they
This Audit                                could be in supporting ICE’s immigration
                                          enforcement strategy. ICE officials did not
                                          consistently enforce the ICE 2008 Guide to
The Immigration Reform                    Administrative Form I-9 Inspections and Civil
and Control Act of 1986                   Monetary Penalties (I-9 Guide) against employers.
prohibits employers from                  This occurred because the guide does not provide
hiring individuals                        detailed instructions on justifying civil fine
unauthorized to work in                   reductions, issuing compliance letters, or performing
the United States. We                     follow-up inspections on warning notices. As a
conducted this audit to                   result, the WSE program does not effectively deter
determine the extent to                   employers from violating employment immigration
which U.S. Immigration                    laws and hiring unauthorized alien workers (UAW).
and Customs
Enforcement’s (ICE)                       ICE also did not take timely and affirmative steps to
Worksite Enforcement                      hold UAWs accountable for obtaining unlawful
(WSE) program supports                    employment because the I-9 Guide has not been
ICE’s strategic goal of                   updated to address risks and challenges associated
protecting the borders                    with UAWs’ use of fraudulent documentation. As a
through efficient                         result, ICE officials cannot ensure that these
immigration enforcement.                  unapprehended individuals do not have criminal
                                          records and the UAWs are free to seek employment
What We                                   elsewhere.

Recommend                                 Lastly, ICE did not ensure the outreach program
                                          achieved measurable progress and was cost effective
We made four                              because ICE officials have not conducted a
recommendations that,                     comprehensive assessment of the program.
when implemented, should                  Consequently, ICE risks overlooking other ways to
improve the effectiveness of              conduct effective outreach with employers to effect
ICE’s Worksite                            positive change.
Enforcement Program.

For Further Information:                  ICE Response
Contact our Office of Public Affairs at
(202)981-6000, or email us at
DHS-OIG.OfficePublicAffairs@oig.dhs.gov   ICE concurred with all four recommendations.




       www.oig.dhs.gov                                                                 OIG-21-15
                          OFFICE OF INSPECTOR GENERAL
                                Department of Homeland Security

                                        Table of Contents

Background .................................................................................................... 2

Results of Audit .............................................................................................. 4

        ICE Did Not Consistently Enforce I-9 Guide Policies Against Employers..5
        ICE’s I-9 Guide Does Not Provide Clear Guidance to Hold UAWs
        Accountable........................................................................................... 9
        ICE’s Outreach Program Did Not Achieve Measurable Progress ............ 11

Recommendations......................................................................................... 12

Appendixes

        Appendix      A: Objective, Scope, and Methodology .................................. 15
        Appendix      B: ICE’s Comments to the Draft Report ................................ 17
        Appendix      C: I-9 Cases Reviewed .......................................................... 22
        Appendix      D: Details of I-9 Cases with Fines ......................................... 27
        Appendix      E: Sample Warning Notice .................................................... 28
        Appendix      F: Report Distribution .......................................................... 30

Abbreviations

        CAT              Compliance Automation Tool
        ECIC             Employer Compliance Inspection Center
        ERO              Enforcement and Removal Operations
        HSI              Homeland Security Investigations
        I-9              Employment Eligibility Verification Form I-9
        ICE              U.S. Immigration and Customs Enforcement
        IMAGE            ICE’s Mutual Agreement between Government
                         and Employers
        IRCA             Immigration Reform and Control Act of 1986
        NIF              Notice of Intent to Fine
        NOI              Notice of Inspection
        OPLA             Office of Principal Legal Advisor
        SAC              Special Agent in Charge
        UAW              Unauthorized Alien Worker
        WSE              Worksite Enforcement




www.oig.dhs.gov                                                                                     OIG-21-15
                   OFFICE OF INSPECTOR GENERAL
                        Department of Homeland Security

                                   Background

The Immigration Reform and Control Act (IRCA) of 1986 prohibits employers
from hiring individuals unauthorized to work in the United States. IRCA
requires employers to obtain from each potential employee a completed U.S.
Citizenship and Immigration Services’ Form I-9 Employment Eligibility
Verification (I-9) and verify employment documents. According to IRCA, it is
illegal for employers to “knowingly hire” and “continue to employ” unauthorized
workers. The Act established criminal and civil sanctions and fines against
employers who do not comply with the law.

U.S. Immigration and Customs Enforcement (ICE) carries out Federal laws
governing border control, customs, trade, and immigration to promote
homeland security and public safety. ICE’s Homeland Security Investigations
(HSI) directorate uses a three-pronged approach in its Worksite Enforcement
(WSE) Program — enforcement, compliance, and outreach.

   1) Enforcement includes bringing criminal and civil actions against
      employers and employees who knowingly violate the law.
   2) Compliance involves conducting I-9 inspections of employers to verify
      potential employees’ eligibility to work in the United States.
   3) Outreach uses the “ICE Mutual Agreement between Government and
      Employers” (IMAGE) program to promote and encourage voluntary
      compliance by employers. See Figure 1.

        Figure 1. Three-Pronged Approach to Worksite Enforcement




                  Source: ICE Homeland Security Investigations (HSI)



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Enforcement through Criminal and Civil Actions

ICE promotes homeland security and public safety through criminal and civil
enforcement of Federal laws
governing border control,
customs, trade, and
immigration. ICE’s goals
include the protection of our
borders through efficient
immigration enforcement and
creation of a culture of
employer compliance based on
worksite investigations. See
Figure 2. For fiscal years
2016 through 2018, ICE
                                   Figure 2. ICE field officials at a worksite
reported 148 employer              Source: ICE HSI
convictions arising from
worksite criminal investigations.1

Employer Compliance through I-9 Inspections

ICE special agents and forensic auditors follow the ICE 2008 Guide to
Administrative Form I-9 Inspections and Civil Monetary Penalties (I-9 Guide)
when conducting I-9 inspections to verify employers’ compliance with IRCA
requirements. An I-9 case represents an inspection of an individual
employer. The inspection process begins with a Notice of Inspection (NOI) to
inform the employer that WSE will audit hiring records to determine
compliance with IRCA. Hiring records consist of the I-9 and supporting
documentation that the employer and employees complete. The employer
must verify employment eligibility using the employees’ identity documents.
ICE officials then inspect the I-9s to identify substantive or technical
violations, after which they may issue a Notice of Inspection Results
(compliance letter), a Warning Notice, or a Notice of Intent to Fine (NIF).
Substantive violations can result from an employer failing to prepare an I-9
form or review and verify employee identity documents. Technical violations
are minor issues identified during an I-9 inspection that employers are
allowed to correct within a 10-day period. Uncorrected technical violations
or significant errors or omissions identified in I-9 inspections can result in
substantive violations that may lead to civil fines or warning notices issued


1 ICE provided arrest data on October 10, 2019, which we included in the Background section

for context. We did not test the reliability of this data and did not use this data to support our
findings.

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against employers. In FYs 2016 to 2018, ICE initiated approximately 8,620
inspections.

Outreach Activities through the IMAGE Program

The IMAGE program serves as the outreach initiative of the WSE program to
educate employers about compliance with Federal regulations. According to
ICE, businesses in the United States are vulnerable to unauthorized workers
attempting to obtain employment using fraudulent documents. ICE
established the voluntary IMAGE program in July 2006 to provide education
and training to enhance employers’ awareness of fraudulent documents. ICE
uses approximately 26 special agents to serve as IMAGE coordinators
nationwide. These agents research potential companies to assess suitability for
IMAGE and conduct training and presentations to educate employers about the
program.

Related Office of Inspector General Reports

In 2014, we evaluated the WSE program’s compliance with its policies and
procedures and issued the report, Worksite Enforcement and Administrative
Inspection Process (OIG-14-33). The report noted inconsistencies in how field
offices issued warning notices and reduced fine amounts. Additionally, we
identified inadequate documentation in the case files. We made three
recommendations to improve oversight of the inspection process nationwide,
evaluate the effectiveness of the process, and report and reconcile information
on the WSE inspections. The three recommendations were implemented and
closed.

We conducted this audit to determine the extent to which the WSE program
supports ICE’s strategic goal of protecting the borders through efficient
immigration enforcement. Specifically, we reviewed compliance, civil
enforcement, and outreach activities of the WSE program. We did not review
criminal investigations conducted by the program.

                              Results of Audit

The WSE program’s compliance, civil enforcement, and outreach activities are
not as effective as they could be in supporting ICE’s immigration enforcement
strategy.

ICE officials did not consistently enforce the I-9 Guide against employers,
because the guide does not provide detailed instructions about justifying civil
fine reductions, issuing compliance letters, or performing follow-up inspections

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on warning notices. As a result, the WSE program does not effectively deter
employers from violating employment immigration laws and hiring
unauthorized alien workers (UAW).

ICE also did not take timely and affirmative steps to hold UAWs accountable
for obtaining unlawful employment because the I-9 Guide has not been
updated to address risks and challenges associated with UAWs’ use of
fraudulent documentation. As a result, ICE officials cannot ensure that these
unapprehended individuals do not have criminal records and the UAWs are
free to seek employment elsewhere.

Lastly, ICE did not ensure the outreach program achieved measurable progress
and was cost effective because ICE officials have not conducted a
comprehensive assessment of the program. Consequently, ICE risks
overlooking other ways to conduct effective outreach with employers to effect
positive change.

ICE Did Not Consistently Enforce I-9 Guide Policies against
Employers

We found examples of three I-9 inspections policies that ICE did not
consistently enforce. Specifically, ICE did not always fulfill requirements to
justify civil fine reductions, issue compliance letters to employers, or follow up
on warning notices issued to employers.

ICE Officials Reduced Employers’ Fines without Justification

According to ICE’s Guide to Administrative Form I-9 Inspections and Civil
Monetary Penalties issued in 2008 (I-9 Guide), fines may be imposed against
employers for violations of IRCA. In certain circumstances, fines may be
reduced, but the reductions are to be justified and documented in the case
files. Specifically, the guidance requires ICE’s Office of the Principal Legal
Advisor (OPLA)2 representatives in the field to document the rationale for any
reduction or negotiated settlement. Field OPLA officials are also responsible for
reviewing each notice of intent to fine, determining whether the evidence
presented is legally sufficient, and providing written justification to the Special
Agent in Charge (SAC) for inclusion in the corresponding case file.

Although I-9 inspections revealed significant violations, field OPLA officials did
not always provide proper justification for fine reductions. We reviewed 161

2 OPLA provides a full range of legal services to ICE programs and offices, including litigating

all removal cases. OPLA offers legal advice and counsel to ICE personnel on their customs,
criminal, and immigration law enforcement authorities.

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judgmentally selected I-9 case files completed October 2015 through June
2018 and determined that WSE assessed employer fines in only 23 cases (14
percent). ICE and field OPLA officials reduced the fines by more than $230,000
for 15 of the 23 cases (65 percent), without a justification noted in the case file.
For example, ICE WSE assessed and subsequently reduced fines against the
following employers without written justification:

    x   Employer 213 was assessed a fine of about $66,000 because I-9 records
        were not prepared or completed properly. ICE also identified eight UAWs
        during the inspection. Subsequently, WSE reduced the employer’s fine
        to about $33,000 (50 percent), but did not include a justification in the
        case file.

    x   Employer 100 was assessed a fine of about $22,000, which was reduced
        to about $11,000 (50 percent) under a settlement agreement that also
        required the employer to enroll in E-Verify for 6 years.4 The fine was
        assessed because I-9 documents were not prepared or completed
        properly. The file did not contain a justification for the reduction as
        required by ICE guidance.

    x   Employer 133 was assessed a fine of about $120,000 for failure to prepare
        I-9s and properly complete the documents. The inspection also identified
        19 UAWs. Subsequently, WSE reduced the fine by approximately $42,000
        to about $78,000, but did not include a justification in the case file.

Overall, fine reductions we examined ranged from 8 to 58 percent. Appendix D
provides a breakdown of the fines for the cases we reviewed.

ICE officials reduced fines to employers without documenting a justification
because, although ICE guidance indicates that justifications for fine reductions
are to be documented, the I-9 Guide does not provide the basic elements ICE
officials must include in case files. Regional SACs were responsible for
reviewing and approving civil fine reductions but did not ensure proper
documentation was included in the case files. Furthermore, ICE management
did not have a quality assurance process to help determine, on a consistent
and periodic basis, whether field offices were complying with the I-9 Guide
regarding substantiating fine reductions. As a result, undocumented civil fine

3 For confidentiality, we refer to employers by the unique number we assigned to each employer
case file we reviewed. See Appendix C for a complete list of I-9 cases reviewed.
4 E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of

their employees to work in the United States. E-Verify employers confirm the identity and
employment eligibility of newly hired employees by electronically matching information
provided by employees on the Form I-9, Employment Eligibility Verification, with records
available to the Social Security Administration and DHS.

www.oig.dhs.gov                               6                                    OIG-21-15
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reductions may not deter employers from violating employment immigration
laws and hiring unauthorized workers.

ICE Did Not Consistently Issue Compliance Letters to Employers as Required

The I-9 Guide directs ICE officials to issue a Notice of Inspection Results, also
known as a compliance letter, to an employer only if the inspection did not
identify technical violations, substantive violations or any UAWs within the
employer’s workforce. Procedurally, compliance letters are the result of
satisfactory I-9 inspections. Officials are required to issue fines or warning
notices for substantive violations to noncompliant employers. ICE issued
compliance letters in 63 of the 161 cases (39 percent) we reviewed.

Although ICE officials appropriately issued compliance letters for 49 of the 63
cases (78 percent), the I-9 inspections detected UAWs and substantive
violations in the remaining 14 cases (22 percent). Specifically, ICE officials
identified 101 UAWs and 93 substantive violations among the 14 cases, but did
not issue employers fines or warning notices as required. Contrary to I-9
guidance, in these 14 cases ICE officials allowed employers to correct
substantive I-9 violations or terminate UAWs, and subsequently issued each
employer a compliance letter. See Figure 3.

Figure 3. Worksite Enforcement (WSE) Compliance Letters




Source: Office of Inspector General (OIG) analysis of WSE case files

Following are several examples of the inappropriately issued compliance letters:

   x   ICE found that the I-9 paperwork for Employer 130 had 63 substantive
       violations. To correct 46 of these violations, ICE officials accepted forms
       the employer had backdated to match the employees’ hire dates. ICE
       then issued Employer 130 a compliance letter.


www.oig.dhs.gov                                 7                         OIG-21-15
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    x   ICE officials determined that 43 of 131 employees (33 percent) working
        for Employer 70 were unauthorized to work in the United States. In
        accordance with ICE procedures, ICE officials issued Employer 70 a
        Notice of Suspect Document,5 advising the employer that ICE had
        determined 43 of its employees were unauthorized to work in the United
        States. Upon receipt of the notice, Employer 70 terminated its 43
        unauthorized employees. ICE officials then issued Employer 70 a letter
        stating the employer was in adjusted compliance,6 although the I-9
        Guide does not allow for adjusted compliance if UAWs are present.

ICE officials issued compliance letters to employers who did not qualify to
receive them because ICE’s I-9 Guide, which has not been updated since 2008,
did not address circumstances encountered during I-9 inspections. For
instance, ICE guidance does not provide information about how ICE officials
should report inspection outcomes when ICE officials identify UAWs, but the
employers claim they are unaware that the UAWs they hired are using
fraudulent documentation. Furthermore, ICE management did not have a
mechanism to verify whether field offices were issuing compliance letters in
accordance with the I-9 Guide. As a result, ICE officials are not holding
employers accountable for noncompliance with immigration law, and the
practice of issuing compliance letters for unsatisfactory inspection results may
not deter employers from hiring unauthorized workers.

ICE Did Not Follow up on Warning Notices Issued to Employers

When ICE officials identify unresolved technical or substantive violations, the I-
9 Guide permits them to issue a warning notice to an employer, instead of a
fine, if there is an expectation of future compliance by the employer. However,
ICE guidance requires officials to include a follow-up date on the warning
notice and conduct a re-inspection of the employer within 6 months of the
original warning notice date. Appendix E includes an example of a warning
notice form issued to employers.

Of the 161 cases we reviewed, ICE officials did not follow up on 72 of 74 (97
percent) warning notices. Of the two follow-up inspections conducted, one took

5 A Notice of Suspect Document advises the employer that, based on a review of the Form I-9
and documentation submitted by the employee, ICE has determined an employee is
unauthorized to work. The document advises the employer of possible criminal and civil
penalties for continuing to employ the individual. ICE provides the employer and employee an
opportunity to present additional documentation to demonstrate work authorization if they
believe there to be an error.
6 Per I-9 Guidance, the auditor will serve the employer a Notice of Inspection Results when

technical violations have been corrected and the employer has been brought into adjusted
compliance.

www.oig.dhs.gov                               8                                   OIG-21-15
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place within 6 months and the other was done more than 2 years after
issuance of the warning notice. See Figure 4.

        Figure 4. WSE Warning Notices and Follow-up I-9 Inspections




                             Source: OIG analysis of WSE case files

According to ICE officials, they did not follow up on warning notices because
they did not have sufficient resources, follow-up inspections were not an ICE
priority, and there was an expectation of future employer compliance, albeit
unverified. Although limited resources and competing priorities may present
real challenges, ICE management has not updated the I-9 Guide to reflect these
challenges. Instead, decisions to perform follow-up inspection were deferred by
ICE management to regional ICE officials without corresponding mechanisms
for ICE management to verify whether the follow-up inspections were
performed in accordance with the I-9 Guide. As a result, ICE officials have no
assurance that employers ultimately addressed prior violations.

ICE’s I-9 Guide Does Not Provide Clear Guidance to Hold UAWs
Accountable

The I-9 Guide instructs ICE officials to take timely and affirmative steps to
administratively arrest7 suspected UAWs identified during I-9 inspections and
seek to bring criminal charges against the UAWs as appropriate. The guide
also permits ICE officials to exercise discretion between administrative arrest
and displacement of UAWs from the workplace.

We found that ICE officials generally did not make arrests unless the UAW also
had a criminal record or an existing Enforcement and Removal Operations
(ERO) warrant. In 48 of 161 cases (30 percent) we reviewed, ICE officials

7An administrative arrest is the arrest of an alien for a charge to be adjudicated before an
administrative judge, such as an immigration judge, or in other administrative processes
separate from the criminal justice system.

www.oig.dhs.gov                                 9                                      OIG-21-15
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identified 1,129 UAWs. Of the 1,129 UAWs, ICE officials arrested only 5
individuals because of outstanding criminal warrants, such as unlawful
reentry or active ERO warrants. However, ICE officials did not administratively
arrest any of the remaining 1,124 UAWs and allowed them to stay in the
United States (as shown in Table 1) even though ICE officials determined that
some of these UAWs may have used fraudulent immigration documents, alien
numbers, or social security numbers to obtain employment, which may be
considered a criminal offense.

We also identified 2 of the 48 (4 percent) inspections where ICE officials allowed
employers to continue employing a total of 23 identified UAWs. However,
according to the I-9 Guide and Federal law, ICE officials do not have the
authority to allow employers to continue to employ UAWs.8 Additionally, an
OPLA official, citing the federal statute, stated ICE officials should have
required the employers to “cease and desist” from the violations or initiated
criminal investigations of the employers. The remaining 1,101 UAWs identified
in our review, although not arrested, were either terminated by employers or
left their places of work on their own.

Table 1. Disposition of Unauthorized Alien Workers (UAWs) Identified from
Our Review of 48 WSE I-9 Inspections
                                          Unauthorized       Unauthorized
       Unauthorized Alien                 Alien Workers      Alien Workers
                                                                                   Total
       Worker Disposition                Not Arrested By      Arrested By
                                               ICE                ICE
    UAWs Arrested                                                  5                    5
    UAWs Not Arrested and
    Unlawfully Allowed to                       23                                    23
    Remain Employed
    UAWs Not Arrested                        1,101                                 1,101
      Total UAWs Identified                  1,124                   5             1,129
Source: OIG analysis of WSE case files

The I-9 Guide permits ICE officials to exercise discretion when making
administrative arrests.9 However, the fact that ICE officials arrested 5
individuals with prior criminal records and did not consider arresting the
remaining 1,124 suspected UAWs –– even when the officials found evidence of
8
  U.S. Immigration and Customs Enforcement, Worksite Enforcement Guide to Administrative
Form I-9 Inspections and Civil Monetary Penalties, pp. 10, 36 (Nov. 25, 2008); 8 U.S.C. §
1324a(e)(4)(A).
9
  In addition, we acknowledge ICE may have in place different enforcement priorities at any
particular time, as established in the form of executive orders and policy memos implementing
such executive orders.

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fraudulent documents –– does not comply with the overall intent of the
requirement in the I-9 Guide to take timely and affirmative enforcement action.
The I-9 Guide, in these circumstances, includes steps ICE officials follow to
notify employers of suspected unauthorized workers, but the I-9 Guide does
not include guidance on how or under what circumstances ICE officials should
administratively arrest suspected UAWs. ICE’s I-9 inspection guidance has not
been updated in the past 12 years. Without additional guidance regarding the
protocols and processes to perform administrative arrests of UAWs identified
during I-9 inspections and verify the identity of individuals using fraudulent
documentation, ICE officials cannot ensure that these individuals do not have
criminal records. Additionally, ICE officials cannot ensure UAWs will not
remain free to seek employment elsewhere.

ICE’s Outreach Program Did Not Achieve Measurable Progress

ICE created the IMAGE program to reduce vulnerabilities related to
employment of illegal aliens by offering employers education and training to
improve their awareness of and compliance with Federal laws.10 Employers
who participate in the IMAGE program must undergo I-9 inspection and agree
to specific hiring practices and terms to receive IMAGE program certification
and benefits, such as potential fine mitigation; a 2-year I-9 inspection reprieve;
and WSE information and training before, during, and after I-9 inspections.
The goal of IMAGE is to reduce illegal employment, eliminate unfair labor
advantages, and ultimately create a culture of compliance.

However, the IMAGE program is not impactful or cost effective. Since 2006,
ICE officials have reported conducting more than 20,000 IMAGE presentations
to more than 131,000 employers, by participating at trade shows, conferences,
and industry events, as well as conducting numerous live and virtual trainings.
We estimated that ICE has spent an average of $1.8 million per year during
FYs 2016 through 2018 to administer the IMAGE program. However, only 433
employers out of approximately 30 million businesses11 in the United States
have joined the IMAGE program to date.

According to ICE officials, low participation in the IMAGE program is because
employers do not recognize the benefits of joining IMAGE. Such benefits
include reductions of fines assessed as a result of inspections or deferral of
subsequent I-9 inspections for 2 years. ICE officials said employers are
skeptical about voluntarily opening their books for I-9 inspection if the
potential to be fined remains. In January 2019, ICE officials issued a

10 The program is briefly mentioned in the FYs 2016-2020 ICE Strategic Plan, the FYs 2016-
2020 HSI Strategy, the FY 2018 WSE Strategy, and the Guide to WSE Investigations.
11 U.S. Small Business Administration, Office of Advocacy, 2018 Small Business Profiles.


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memorandum identifying IMAGE program challenges and recognizing that new
incentives were needed to increase the impact and cost-effectiveness of the
IMAGE program. However, ICE officials have not conducted a comprehensive
assessment of the program. As a result, ICE risks overlooking other ways to
conduct effective outreach and missing opportunities to use Federal funds
more effectively in other areas of WSE to effect positive change.

                             Recommendations

We recommend the ICE Homeland Security Investigations Worksite
Enforcement Unit Chief:

Recommendation 1: Update the I-9 Guide to include minimum elements ICE
officials must document in case files to justify fine reductions.

Recommendation 2: Assess I-9 processes and update the I-9 Guide to ensure
it addresses risks and challenges, including:

         a. when employers make corrections to address substantive
            violations and when employers claim they were unaware that they
            employed Unauthorized Alien Workers;

         b. ICE’s ability to conduct follow-up inspections with limited
            resources; and

         c. when I-9 inspections identify individuals using fraudulent
            documents to obtain unlawful employment.

Recommendation 3: Develop and implement a quality assurance process that
allows ICE headquarters to sample cases on an objective, periodic basis, to
determine whether field offices reduce fines, issue compliance letters, and
conduct follow-up inspections of employers in accordance with ICE policies and
procedures.

Recommendation 4: Conduct an assessment of the IMAGE program to
determine whether implementation of other approaches would aid in achieving
its outreach goal and be cost effective, or if funds should be put to better use.

              Management Comments and OIG Analysis

The Chief Financial Officer and Senior Component Accountable Official
provided written comments on a draft of this report, which are included in
Appendix B. ICE concurred with all four recommendations and is

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taking actions to address them. We also received technical comments on the
draft report and revised the report as appropriate. We consider all
recommendations resolved and open. A summary of ICE’s responses and our
analysis follows.

ICE’s Response to Recommendation 1: ICE officials concurred with
recommendation 1 and are drafting a WSE Handbook to establish revised
policies and procedures for WSE criminal investigations, administrative
inspections (Form I-9 audits), and the outreach (IMAGE) program. The draft
WSE Handbook will also provide the minimum elements that ICE officials must
document in case files to justify fine reductions. ICE’s estimated completion
date is May 31, 2021.

OIG Analysis: ICE actions are responsive to this recommendation. We
consider this recommendation resolved, but it will remain open until ICE
provides documentation showing that all planned corrective actions are
completed.

ICE’s Response to Recommendation 2: ICE officials concurred with
recommendation 2 and are addressing this recommendation through the
revision of the WSE Handbook, communication to field personnel, and
expansion of ICE’s Employer Compliance Inspection Center (ECIC). The
expanded ECIC will provide field offices with inspections of Employment
Eligibility Verification Forms, and will allow for the consolidation of WSE audits
at one centralized location. The estimated completion date is November 30,
2023.

OIG Analysis: This recommendation is resolved and open. ICE’s planned
corrective actions meet the intent of the recommendation. We will close the
recommendation when ICE provides documentation showing the WSE
handbook revision is complete, field personnel have been informed and the
ECIC is expanded.

ICE’s Response to Recommendation 3: ICE officials concurred with
recommendation 3 and stated that expansion of the ECIC and implementation
of a Compliance Automation Tool (CAT) will address the need for a quality
assurance process. The CAT will provide for the centralized processing and
storage of I-9 inspections and facilitate quality reviews. ICE’s estimated
completion date is November 30, 2023.

OIG Analysis: This recommendation is resolved and open. The proposed
corrective actions meet the intent of the recommendation. We will close this
recommendation when ICE provides documentation showing expansion of the
ECIC and other improvements in automation.

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ICE’s Response to Recommendation 4: ICE officials concurred with
recommendation 4. ICE will assess the IMAGE program, starting with an
analysis of the impact of its new guidance and changes to the program in
recent years. Additionally, ICE will conduct a qualitative analysis and review of
the overall efficacy of the program. ICE’s estimated completion date is
November 30, 2022.

OIG Analysis: This recommendation is resolved and open. The proposed
corrective actions meet the intent of the recommendation, but it will remain
open until ICE provides documentation showing that all planned corrective
actions and assessments are completed.




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Appendix A
Objective, Scope, and Methodology

The Department of Homeland Security Office of Inspector General was
established by the Homeland Security Act of 2002 (Pub. L. No.107−296) by
amendment to the Inspector General Act of 1978.

The objective of this audit was to determine the extent to which the WSE
program supports ICE’s strategic goal of protecting the borders through
efficient immigration enforcement. The scope of this audit covers the ICE WSE
program during FYs 2016 through June 2018.

We conducted interviews with ICE officials assigned to work on worksite
enforcement cases from headquarters and SACs in seven field offices, including
El Paso, Texas; St. Paul, Minnesota; Denver, Colorado; Washington, D.C.;
Chicago, Illinois; Miami, Florida and Dallas, Texas. We analyzed legislation
and departmental regulations, policies, procedures, and guidance on
immigration enforcement and HSI WSE responsibilities. We also reviewed prior
U.S. General Accountability Office and OIG reports regarding ICE’s roles and
responsibilities in implementing the WSE program.

We evaluated a judgmental sample of 161 closed WSE I-9 case files. We tested
internal controls of WSE’s encounters with, and administrative arrests of
UAWs, and the sufficiency of documentation to support the assessment,
reduction, and collection of civil fines. Further, we reviewed the
appropriateness of compliance letters and warning notices to determine
whether they were issued according to departmental guidance, and the
effectiveness of the IMAGE program. We reviewed the I-9 inspection data ICE
provided and compared it to WSE’s reporting system and external ICE reports
and briefings to assess data reliability. We reviewed the case data and
confirmed with headquarters' Cognos Analytics reports to assess reliability. We
determined that the I-9 inspection data was reasonably complete and accurate
based on our limited testing with minimal discrepancies. Thus, we consider
the data sufficiently reliable for our findings and recommendations. WSE
criminal investigation data was not tested for data reliability or accuracy as we
did not review criminal investigations conducted by the program.

We conducted this performance audit between April 2018 and February 2020
pursuant to the Inspector General Act of 1978, as amended, and according to
generally accepted government auditing standards. Those standards require
that we plan and perform the audit to obtain sufficient, appropriate evidence to
provide a reasonable basis for our findings and conclusions based upon our



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audit objective. We believe that the evidence obtained provides a reasonable
basis for our findings and conclusions based upon our audit objectives.




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Appendix B
ICE’s Comments to the Draft Report




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Appendix C
I-9 Cases Reviewed




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Appendix C
I-9 Cases Reviewed (continued)




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Appendix C
I-9 Cases Reviewed (continued)




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Appendix C
I-9 Cases Reviewed (continued)




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Appendix C
I-9 Cases Reviewed (continued)




Source: OIG analysis of case files provided by HSI




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                                 Department of Homeland Security

Appendix D
Details of I-9 Cases with Fines

               Application of                                           Fine        Reduction
  Employer                              Fine          Final Order
               Intent to Fine                                        Reduction    Justification in
                                      Reduced           Amount
                  Amount                                             Percentage      Case File
     20            $    9,869           Yes            $     7,541     24 %             No
     21                65,914           Yes                 33,094     50 %             No
     22                505,442          Yes                465,035      8%              No
     29                 57,892          Yes                 46,314     20 %             No
     30                 17,685          Yes                 16,000     10 %             No
     54                 11,406          Yes                  6,000     47 %             Yes
     55                 11,802          Yes                  5,000     58 %             Yes
     63                  5,694          No                   5,694       -             N/A
     71                 18,513          Yes                 10,729     42 %             No
     72                 40,564          Yes                 29,097     28 %             No
     73                 47,801          No                  47,801       -             N/A
     74                  9,152          Yes                 3,945      57 %             No
     75                  6,703          Yes                 4,776      29 %             No
     76                  8,315          No                  8,315        -             N/A
     77                 11,856          Yes                 9,922      16 %             No
     100                21,785          Yes                10,893      50 %             No
     131               208,552          Yes             185,000        11 %             No
     132                70,831          Yes                60,000      15 %             Yes
     133               120,192          Yes                78,125      35 %             No
     135               162,553          Yes            130,018         20 %             No
     136                37,755          No                 37,755        -             N/A
     137                13,182          Yes                 8,750      34 %             No
     150               133,096          Yes                62,555      53 %            Yes
                                      Yes - 19                                        Yes - 4
    Total         $1,596,554                          $1,272,359         -
                                       No - 4                                         No - 15
Source: OIG analysis of case files provided by HSI. Employer numbers in the table in this
appendix are referenced from Appendix C, I-9 Case Files Reviewed.
Results may vary due to rounding.




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Appendix E
Sample Warning Notice




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Appendix E
Sample Warning Notice




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Appendix F
Report Distribution

Department of Homeland Security

Secretary
Deputy Secretary
Chief of Staff
Deputy Chiefs of Staff
General Counsel
Executive Secretary
Director, GAO/OIG Liaison Office
Under Secretary, Office of Strategy, Policy, and Plans
Assistant Secretary for Office of Public Affairs
Assistant Secretary for Office of Legislative Affairs

U. S. Immigration and Customs Enforcement

Acting Director
Worksite Enforcement, Unit Chief
Audit Liaison, ICE (Job Code G-18-077-AUD-ICE)

Office of Management and Budget

Chief, Homeland Security Branch
DHS OIG Budget Examiner

Congress

Congressional Oversight and Appropriations Committees




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www.oig.dhs.gov.

For further information or questions, please contact Office of Inspector General
Public Affairs at: DHS-OIG.OfficePublicAffairs@oig.dhs.gov.
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