Executive Order Authorizing Municipalities to Enforce Certain Provisions of the Immigration and Nationality Act

Whistleblower And Local Law Enforcement Teamwork (WALLET) Executive Order to establish a pilot program allowing local law enforcement to enforce I-9 and E-Verify rules and use the penalties collected to assist the immigrant victims and local community.

Click the title above to download pdf version.

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and 3 U.S.C. § 301, I announce the formation of the Whistleblower And Local Law Enforcement Teamwork (WALLET) Program and it is hereby ordered as follows:

Section 1. Policy.

(a) It is the policy of the United States to require employers to verify the identity and employment eligibility of all individuals hired in the United States, and to document such verification on the Employment Eligibility Verification Form 1-9 (Form I-9) pursuant to INA § 274a(b) (8 U.S.C. § 1324a(b)). The protocols and procedures associated with the I-9 inspection and enforcement process play a crucial role in detecting and stopping employers who knowingly hire and continue to employ persons not eligible to work in the United States. It is therefore the policy of the United States to improve the protocols and procedures associated with the I-9 inspection and enforcement process.

(b) The I-9 inspection and enforcement process currently consists of the following:

(i) U.S. Immigration and Customs Enforcement (ICE), acting through ICE’s Homeland Security Investigations (HSI) division, serves a Notice of Inspection (NOI) upon an employer, compelling such employer to produce its I-9 forms.

(ii) HSI agents or auditors conduct a compliance inspection of the I-9 forms.

(iii) An employer has ten business days to correct technical or procedural violations pursuant to INA §274A(b)(6)(B) (8 U.S.C. § 1324a(b)(6)(B)). The employer may be fined for substantive and uncorrected technical violations.

(iv) If it is determined that the employer knowingly hired or continued to employ unauthorized workers, that employer may be fined or criminally prosecuted under INA § 274A(a)(1)(A) or (a)(2) (8 U.S.C. § 1324a(a)(1)(A) or (a)(2)). Such an employer may also be prevented from participating in future federal contracts and from receiving other government benefits.

(v) ICE and/or HSI, as appropriate, considers the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations when determining monetary penalties, which range from $110 for a substantive violation to $16,000 per violation for employers that repeatedly knowingly hire and continue to employ unauthorized workers.

Section 2. Delegation of ICE authority to local law enforcement.

(a) INA § 287(g) (8 U.S.C. 1357(g)) authorizes the Attorney General to enter into agreements with state and local law enforcement agencies, to permit designated officers to perform immigration law enforcement functions. A state or local law enforcement entity enters into a partnership with ICE, under a joint Memorandum of Agreement (MOA), in order to receive such authority within their jurisdictions. Local law enforcement officers must receive appropriate training and must function under the supervision of ICE officers.

(b) Part of the natural process of training and teamwork between ICE and local law enforcement involves community outreach and the provision of assistance to find and halt abuse and violations. In addition to current support with raids and arrests, ICE and/or HSI shall welcome and actively seek teamwork and support from local law enforcement with I-9 administrative compliance.

(d) ICE and/or HSI authority, as appropriate, shall therefore be delegated to local law enforcement agencies, upon execution of a joint MOA and completion of appropriate training for local officers, to:

(i) serve an NOI on an employer to compel production of I-9 forms.

(ii) conduct a compliance inspection of such I-9 forms;

(iii) submit a Notice of Intent to Fine (NIF) to an employer for technical or procedural violations related to the I-9, indicating fines consistent with current federal guidelines;

(iv) submit a NIF to an employer for knowingly hiring or continuing to employ unauthorized workers, indicating fines consistent with current federal guidelines;

(v) collect fines as indicated on the NIF; and

(vi) distribute fines in accordance with Section 3 of this order.

(e) ICE, acting though and/or in concert with HSI, shall solicit and accept applications from municipalities and states desiring to participate in this voluntary pilot program as well as applications from individuals who desire to become whistleblowers within those communities; shall expand the current ICE Homeland Security Investigations Tip Line to include a dedicated Internet portal whereby whistleblowers may report companies which are hiring and/or victimizing unauthorized workers; and shall take other administrative and training actions as necessary to implement and manage this program.

(f) Criminal prosecutions of employers pertaining to I-9 violations shall be referred to and handled exclusively by ICE and/or HSI, as appropriate.

(g) Reports of other potential criminal activity including failure to pay Federal minimum wage, failure to withhold and pay Federal Income Taxes, and violent crimes such as human trafficking and gang violence will be forwarded to the appropriate agency for prosecution.

(h) Within thirty (30) days of receiving a locally initiated NIF, the employer will have the opportunity to either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO). OCAHO will then assign the case to an Administrative Law Judge (ALJ) and the adjudicative process will proceed as current federal law dictates.

(i) If the employer takes no action after receiving a locally initiated NIF, the local law enforcement agency or the municipality will issue a Final Order to the employer and the employer will be responsible for paying the fines (the “Locally Generated Fines”) as indicated on such Final Order.

Section 3. Fine distribution.

(a) Pursuant to 31 U.S.C. § 3302(b), the Locally Generated Fines shall be deposited into the United States Treasury without offset.

(b) The municipality that generated the Locally Generated Fines, or, in the alternative, the state in which the municipality is located, shall automatically become eligible to receive a grant from ICE for recovery of costs associated with I-9 enforcement, including service of NOIs, compliance inspections, submission of NIFs, collection of fines, and distribution of fines. Such grants will be used for INA and I-9 training; I-9 administrative and collection costs; outreach, support, and assistance to the immigrant community and victims of unlawful employment practices; and community support incentives, and shall be in an amount up to the amount of the Locally Generated Fines collected.

(i) To reimburse the costs of INA and I-9 training, 25% to the branch of local law enforcement that initiated the investigation;

(ii) To reimburse I-9 administrative costs and collection expenses, 25% to the impacted municipality;

(iii) For outreach, support, and assistance to the immigrant community and victims of unlawful employment practices, 25% to the general treasury fund of the state where the municipality is located; and

(iv) As a community support initiative, 25% to the source of the information that led to the initiation of the investigation, if that source is an individual “whistleblower” and not local law enforcement itself, provided that the whistleblower is a registered voter of a United States state; otherwise, to the general treasury fund of the state where the municipality is located.

(d) Congress shall be encouraged to amend INA § 274a(e) (8 U.S.C. § 1324a(e)) to permit Locally Generated Fines to be paid directly to the municipality that generated the NIF and associated Final Order, thus eliminating the need for items (a) and (b) of this Section 3.

Section 4. General provisions.

(a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other ps, or entities, its officers, employees, or agents, or any other person.