ICE Deputy Director Thomas D. Homan on the 7-Eleven operation said in a statement, “Businesses that hire illegal workers are a pull factor for illegal immigration and we are working hard to remove this magnet. ICE will continue its efforts to protect jobs for American workers by eliminating unfair competitive advantages for companies that exploit illegal immigration.”
Generally, worksite enforcement investigations fall into two buckets: raids and administrative inspections. A Notice of Inspection, or NOI, is what triggers the investigation of a company’s employment eligibility verification forms (also known as “the Form I-9”). A company has three business days to provide the federal government with its Forms I-9 and any supporting documentation requested in the NOI.
The Form I-9 is a two-page form issued by U.S. Citizenship and Immigration Services, which is used to document a new hire’s identity and work authorization in the United States. Under federal law, U.S. employers must complete and maintain a Form I-9 for each current employee hired post Nov. 6, 1986.
Compliance with the Form I-9 requirement is mandatory and penalties for non-compliance range from paperwork violations for errors or omissions on the Form I-9 ($216-$2,156 per Form I-9) to violations for knowingly hiring or continuing to employ someone knowing they are not authorized to work in the United States ($539-$4,313 per individual). In some cases non-compliance may lead to criminal charges being filed for pattern or practice violations involving the hiring or continuing employment of unauthorized workers.
Keys to ensuring compliance with the Form I-9 requirements include internal audits, training, preparation and having a plan in place.
- Make sure your company’s Forms I-9 are in order by conducting an internal audit using outside legal counsel.
- Train your team on proper completion of the Form I-9. Limit the number of individuals completing the form to a primary and back up, when possible.
- Have written policies and procedures outlining Form I-9 completion, maintenance and disposal of the forms.
- Have a plan in place to respond to a visit by ICE agents regardless of whether it is a raid or a “friendly visit” that results only in the issuance of a NOI. This means clearly marking non-public areas of your workplace and, short of a valid warrant to search and seize, ensuring that agents are escorted to a conference room or other similar public space while a manager or supervisor is called to accept service of the NOI.
- If you are the subject of a government investigation do not try to go it alone as the fines can quickly add up. Call outside counsel knowledgeable in the area of immigration-related worksite enforcement. All too often I see employers turning over too much documentation related to the Forms I-9, thereby potentially increasing their exposure and ultimately liability; as well as too readily agreeing to the fines imposed in a Notice of Intent to Fine without challenging the basis or rationale for the fines, including the consideration of mitigating factors.
Montserrat C. Miller is a partner in the Immigration, Privacy and Consumer Regulatory, and Government Affairs practices at Arnall Golden Gregory LLP in Washington, D.C. She co-chairs the firm’s background screening industry team. Comment below or email firstname.lastname@example.org.