ICE noted that only 135 of the 6,000 arrests made in 2008 were employers, and mandated field offices to shift resources to employer-focused enforcement and training activities. The public got a glimpse of the beginning of employer-focused enforcement when ICE issued an unprecedented 652 notices of inspection, commonly known as I-9 audit notices, on July 1, 2009. In comparison, a total of 503 I-9 audit notices were issued in fiscal year 2008. Because criminal investigations are time-consuming, ICE seems to be using I-9 audits to inspect more employers quickly and initiate targeted criminal investigations. The unprecedented number of I-9 audit notices is thought to be a public warning to employers who know or should have known that they were employing people not legally authorized to work in the U.S.
Immigration noncompliance exposes employers to a wide variety of potential penalties. Hiring an unauthorized worker can cost an employer $375 to $3,200 per unauthorized worker for the first violation. For the second violation, fines range from $3,200 to $6,500 per unauthorized worker, and for the third violation, fines range from $4,300 to $16,000 per worker
Even a mere paperwork violation can result in a penalty of $110 to $1,100 per person. Nondiscrimination violations may result in a file of $250 to $10,000 per person, and document abuse may result in a fine of $100 to $1,000 per person. If an employer is found to have engaged in a pattern or practice of hiring or continuing to employ undocumented aliens, injunctions and criminal penalties may be ordered. The federal government has a number of felony criminal charges it can assert against an employer, including knowingly making false statements on an immigration-related form, alien harboring, misuse of a Social Security number, making false statements to government officials, fraud, money laundering and tax evasion
Recent developments serve as a reminder to all employers that they should establish an immigration compliance program, if one doesn’t exist already. Employers should proactively review their I-9 files, taking appropriate measures to correct omissions or oversights. Here are some key considerations when establishing an effective compliance policy
• Use the correct form: As simple as it may sound, many employers get tripped up by relying on the older version of the I-9 form. They don’t realize that the form was revised and that the revision became effective April 3, 2009. The I-9 form with the revision date of February 2, 2009 (Rev. 02/02/09), http://www.uscis.gov/files/form/i-9.pdf printed on the lower right-hand corner is the form that must now be used
• Timing is critical: Many employers believe that they are in compliance as long as Form I-9 is completed within three days of hire. This is not correct. Employees must complete Section 1 (the top portion) of the I-9 on the first day of employment. No exceptions should be made. If the employee refuses to complete the top portion on the first day, the employer should not permit the person to work until the employee complies. After completing the top portion on the first day, employees have three days to produce documents proving they are authorized to work in the U.S.
• Limit who can handle I-9s and train those people well: This step reduces the risk for errors and can limit liability
• I-9 files should be centralized and stored systematically: Centralized and systematic storage makes internal reviews and audit requests from ICE much easier. Many employers choose to organize I-9 files alphabetically, subdivided by current versus former employees, year of hire versus year of termination, and so on
• Separate I-9 files from other personnel or payroll records: Both the Department of Homeland Security and the Department of Labor are authorized to inspect all I-9 files. Intermingling documents unrelated to I-9 can raise additional issues if DHS or DOL find inconsistencies
• Have a call-up system: Employers should have a system for tracking reverification and document destruction dates. I-9 files may be destroyed one year after termination date or three years after hire date, whichever is longer
• Conduct periodic voluntary audits and provide training in immigration matters: Employers should conduct periodic self-audits to ensure that the existing immigration policy remains effective, making improvements and providing remediation when necessary. Although mistakes cannot be cured retroactively, an employer’s good-faith efforts to correct oversights will be an important factor in negotiating penalties
• Develop a protocol for responding to government inquiries, and designate a company official with authority to respond: If a government agent contacts an employer, the employer should contact an immigration attorney immediately. Any written inquiries must be reviewed promptly, as I-9 files may need to be surrendered in three days. If government agents make an unannounced visit to a work site, only designated company representatives should deal with them
• Stress nondiscrimination: The nondiscrimination provision of the Immigration and Reform Control Act applies to employers with four or more employees, while Title VII applies to employers with 15 or more employees. When considering job applicants, employers must not discriminate against applicants because of their accents, names or appearance. Only job-related qualifications and skills should be considered
It is evident that one of the Obama administration’s primary strategies for enforcing immigration law is to deter employers from hiring undocumented workers. In an interview with the Associated Press, Homeland Security Secretary Janet Napolitano said that DHS intends to utilize all of its investigative tools, including I-9 audits and site visits, as well as having undocumented workers go undercover in order to build a case against an employer. It is too early to tell what other initiatives the federal government will be introducing or what outcomes such programs might produce. However, one thing is clear: Employers should arm themselves with a sound compliance policy and proactive audits in order to steer clear of stiff penalties.