Up until 2008, Immigration and Customs Enforcement (ICE) focused its enforcement efforts almost exclusively on undocumented workers. For instance, ICE made 6,000 workforce enforcement strategy-related arrests in 2008; only 135 of them involved employers. Starting in 2009, however, ICE shifted its focus from illegal workers to employers who knowingly hired unauthorized workers. As part of its strategy of targeting employers, ICE began setting up centers around the country that are fully dedicated to I-9 audit work.
By way of background, under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to verify that an employee is authorized to work in the United States by obtaining and maintaining a completed Form I-9, Employment Eligibility Verification for each employee. The Form I-9 contains a list of acceptable documents for establishing an employee’s identity and authorization to work. Those documents include a U.S. Passport, Permanent Resident Card, driver’s license, social security card, and birth certificate, among others. ICE enforces employers’ obligations under IRCA by, among other things, inspecting their I-9 forms.
Rather than conduct random inspections, though, ICE now targets employers in industries that are critical to the nation’s infrastructure, such as agriculture and food, banking and finance, commercial facilities, communications, and information technology. ICE initiates the inspection process by issuing a Notice of Inspection, which requires an employer to produce I-9 forms for all employees within three days. ICE then reviews the I-9 forms for technical or substantive violations. Substantive or technical I-9 violations result in either a warning or a fine. Over the last two years there has been a dramatic decrease in workplace audits and fines assessed against employers. But it appears that lull is about to come to end.
On June 30, 2016, the U.S. Department of Justice (DOJ) published a rule that will result in an increase of anywhere from 35% to 96% in possible penalties for immigration related violations. For example, the minimum penalty for employing individuals not authorized to work in the U.S. will increase from $375 to $539, while the maximum penalty will go up from $3200 to $4313. Employers with multiple violations, which originally resulted in a penalty from $4300 to $16,000, will now be faced with a penalty of $6469 to $21,563. Similarly, the possible fines for Form I-9 paperwork violations nearly doubled. Fines now will be in the range of $216-$2156 per violation rather than $110-$1100 per instance.
Given the hike in penalties, experts believe that this signifies a shift in policy for ICE to refocus on worksite inspections and that the increase in possible fines will incentivize ICE to conduct employer investigations and identify misconduct. The rule takes effect on August 1, 2016, and the increase in fines will apply to violations that took place after November 2, 2015.
Currently, employers face significant uncertainty when it comes to employer-verification requirements and I-9 compliance. To the extent an employer has questions, the employer seek the assistance of an immigration attorney.