Employers should brace themselves as it begins to look like Immigration and Customs Enforcement (“ICE”) will be targeting them more and more in their neverending quest to ferret out undocumented workers. During a press conference in Washington, D.C., last December, Tom Homan, deputy director of ICE, said,
I want to see a 400% increase in work site operations. We’re not just talking about arresting the aliens at these work sites, we are also talking about employers who knowingly hire people who are unauthorized to work.
And, just this month, 7-Eleven made headline news when ICE officers raided nearly 98 stores across the country. While sobering, Mr. Homan’s comments are not altogether unexpected. With no pending bills to address unauthorized immigration with substantial congressional support, it is unsurprising that worksite enforcement would be the current administration’s next step to quash unauthorized immigration. In 2017, ICE audited 1,360 U.S. businesses, resulting in 71 indictments and 55 convictions of business owners and managers. Equally important is that in 2017 ICE worksite enforcement initiatives resulted in $97.6 million in fines and forfeitures. In 2016, those fines ranged around $2 million. For that reason, immigration experts have been warning employers to expect a crackdown in worksite enforcement for the last year.
In 2009, there was a dramatic change in ICE’s workforce enforcement strategy. Previously, ICE focused its enforcement efforts almost exclusively on illegal workers. 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 worksite inspections. But after 2013, I-9 audits fell sharply as President Obama’s administration shifted its focus on deporting undocumented individuals with criminal records.
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 completing and maintaining a completed Form I-9 for each employee hired on or after November 6, 1986. ICE enforces employers’ obligations under IRCA by, among other things, inspecting their I-9 forms. It also has the authority to issue both civil and criminal penalties. Those criminal penalties include both monetary fines and possible jail time.
Civil penalties for knowingly employing unauthorized immigrants can range from $539 to $21,563. Repeat offenders and companies hiring a larger number of undocumented employees receive fines on the higher end of the range. In addition, paper work errors can also result in I-9 violations. Those violations can carry a penalty of $216 to $2,1156 per relevant individual.
Of course, the easiest way for employers to avoid potential fines is to make sure they are complying with their I-9 obligations—before they get audited. But employers should also consider conducting a self-audit to minimize the potential for fines. Here are five things to consider when conducting an I-9 self-audit:
- Review Current I-9 Procedures – Review your verification system and policies to ensure that your policies satisfy IRCA and are being followed in practice.
- Compare I-9 Forms with Payroll Records – Prepare a computer printout of all employees hired since November 6, 1986, containing the date of hire and date of termination for all such employees, to ensure there is an I-9 form for each employee.
- Review How I-9 Forms Are Maintained – Make sure the I-9 forms are separated from employee’s personnel files and maintained in a separate I-9 file (or maintained electronically in compliance with the specific controls for electronic retention).
- Correcting and/or Replacing a Form I-9 – If the employer needs to correct the I-9 form, the new information should be inserted, signed, and dated as of the time of the insertion. If the omission or mistake was in Section 1 of the I-9 form, the employee should also sign and date the correction. Above all, the form should not be backdated.
- Completing an Audit –Prepare a file memo that includes, at a minimum, errors discovered, corrections made, actions taken, any changes in policies, or training to undertake.
More than ever, employers should be particularly diligent when it comes to complying with the Form I-9 obligations. Remember, an employer faces civil and potential criminal liability for hiring undocumented workers (regardless of whether they did it knowingly or unknowingly). At the same time, an employer opens itself up to discrimination charges for not hiring newly documented workers who previously presented fraudulent documents. Going forward, worksite enforcement inspections are only expected to increase. So being proactive and conducting a proper self-audit will be key to minimize potentially substantial fines.