DHS OIG, OIG-21-15, ICE Guidance Needs Improvement to Deter Illegal Employment (2021)

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 FROM: SUBJECT: Senior Official Performing the Duties of the Director U.S. Immigration and Customs Enforcement Joseph V. Cuffari, Ph.D. Inspector General JOSEPH V CUFFARI Digitally signed by JOSEPH V CUFFARI Date: 2021.01.13 13:10:10 -05'00' 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 [email protected]. 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 Why We Did This Audit The Immigration Reform and Control Act of 1986 prohibits employers from hiring individuals unauthorized to work in the United States. We conducted this audit to determine the extent to which U.S. Immigration and Customs Enforcement’s (ICE) Worksite Enforcement (WSE) program supports ICE’s strategic goal of protecting the borders through efficient immigration enforcement. What We Recommend We made four recommendations that, when implemented, should improve the effectiveness of ICE’s Worksite Enforcement Program. For Further Information: Contact our Office of Public Affairs at (202)(cid:3)981-6000, or email us at [email protected] What We Found 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 ICE 2008 Guide to Administrative Form I-9 Inspections and Civil Monetary Penalties (I-9 Guide) against employers. This occurred because the guide does not provide detailed instructions on justifying civil fine reductions, issuing compliance letters, or performing follow-up inspections 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 Response 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 ECIC ERO HSI I-9 ICE IMAGE ICE’s Mutual Agreement between Government Compliance Automation Tool Employer Compliance Inspection Center Enforcement and Removal Operations Homeland Security Investigations Employment Eligibility Verification Form I-9 U.S. Immigration and Customs Enforcement and Employers IRCA Immigration Reform and Control Act of 1986 NIF NOI OPLA SAC UAW WSE Notice of Intent to Fine Notice of Inspection Office of Principal Legal Advisor Special Agent in Charge Unauthorized Alien Worker 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) www.oig.dhs.gov 2 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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 reported 148 employer convictions arising from worksite criminal investigations.1 Figure 2. ICE field officials at a worksite Source: ICE HSI 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. www.oig.dhs.gov 3 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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 www.oig.dhs.gov 4 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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. www.oig.dhs.gov 5 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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: (cid:120) 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. (cid:120) 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. (cid:120) 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 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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: (cid:120) 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 OFFICE OF INSPECTOR GENERAL Department of Homeland Security (cid:120) 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 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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 7 An 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 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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 Alien Worker Disposition UAWs Arrested UAWs Not Arrested and Unlawfully Allowed to Remain Employed UAWs Not Arrested Total UAWs Identified Source: OIG analysis of WSE case files Unauthorized Alien Workers Not Arrested By ICE Unauthorized Alien Workers Arrested By ICE 5 23 1,101 1,124 5 Total 5 23 1,101 1,129 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. www.oig.dhs.gov 10 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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. www.oig.dhs.gov 11 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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 www.oig.dhs.gov 12 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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. www.oig.dhs.gov 13 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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. www.oig.dhs.gov 14 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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 www.oig.dhs.gov 15 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security audit objective. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based upon our audit objectives. www.oig.dhs.gov 16 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security Appendix B ICE’s Comments to the Draft Report www.oig.dhs.gov 17 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security www.oig.dhs.gov 18 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security www.oig.dhs.gov 19 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security www.oig.dhs.gov 20 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security www.oig.dhs.gov 21 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security Appendix C I-9 Cases Reviewed www.oig.dhs.gov 22 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security Appendix C I-9 Cases Reviewed (continued) www.oig.dhs.gov 23 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security Appendix C I-9 Cases Reviewed (continued) www.oig.dhs.gov 24 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security Appendix C I-9 Cases Reviewed (continued) www.oig.dhs.gov 25 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security Appendix C I-9 Cases Reviewed (continued) Source: OIG analysis of case files provided by HSI www.oig.dhs.gov 26 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security Appendix D Details of I-9 Cases with Fines Employer Application of Intent to Fine Amount Fine Reduced Final Order Amount Fine Reduction Percentage Reduction Justification in Case File 20 21 22 29 30 54 55 63 71 72 73 74 75 76 77 100 131 132 133 135 136 137 150 $ 9,869 65,914 505,442 57,892 17,685 11,406 11,802 5,694 18,513 40,564 47,801 9,152 6,703 8,315 11,856 21,785 208,552 70,831 120,192 162,553 37,755 13,182 133,096 Yes Yes Yes Yes Yes Yes Yes No Yes Yes No Yes Yes No Yes Yes Yes Yes Yes Yes No Yes Yes $ 7,541 33,094 465,035 46,314 16,000 6,000 5,000 5,694 10,729 29,097 47,801 3,945 4,776 8,315 9,922 10,893 185,000 60,000 78,125 130,018 37,755 8,750 62,555 24 % 50 % 8 % 20 % 10 % 47 % 58 % - 42 % 28 % - 57 % 29 % - 16 % 50 % 11 % 15 % 35 % 20 % - 34 % 53 % Total $1,596,554 Yes - 19 No - 4 $1,272,359 - No No No No No Yes Yes N/A No No N/A No No N/A No No No Yes No No N/A No Yes Yes - 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. www.oig.dhs.gov 27 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security Appendix E Sample Warning Notice www.oig.dhs.gov 28 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security Appendix E Sample Warning Notice www.oig.dhs.gov 29 OIG-21-15 OFFICE OF INSPECTOR GENERAL Department of Homeland Security 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 www.oig.dhs.gov 30 OIG-21-15 Additional Information and Copies To view this and any of our other reports, please visit our website at: www.oig.dhs.gov.

For further information or questions, please contact Office of Inspector General Public Affairs at: [email protected]. Follow us on Twitter at: @dhsoig. OIG Hotline (cid:3) To report fraud, waste, or abuse, visit our website at www.oig.dhs.gov and click on the red "Hotline" tab. If you cannot access our website, call our hotline at (800) 323-8603, fax our hotline at (202) 254-4297, or write to us at: Department of Homeland Security Office of Inspector General, Mail Stop 0305 Attention: Hotline 245 Murray Drive, SW Washington, DC 20528-0305