The Immigration Reform and Control Act of 1986 (“IRCA”) put the burden of verifying that new hires are authorized to work in the United States squarely on the shoulders of United States employers. Since IRCA was enacted on November 6, 1986, United States employers have been required to accurately complete and retain an I‑9 Employment Eligibility Verification form for each new hire (the “I-9 Requirement”). The consequences of failing to comply with the I-9 Requirement can be costly.
To monitor compliance with the I-9 Requirement, Immigration and Customs Enforcement (“ICE”), Homeland Security Investigations (“HSI”) (formerly known as “INS”), engages in worksite enforcement actions including I-9 Notices of Inspection (i.e., audits), investigations and raids. Since 1986, the type and frequency of worksite enforcement actions has varied dramatically by presidential administration. After a relatively inactive decade, after President Obama’s election, HSI put into place a widespread enforcement strategy to audit compliance with the I-9 Requirement by issuing hundreds of Notices of Inspection to employers across the United States. Typically, these Notices of Inspection required employers to provide the original I-9 forms relating to their current employees and former employees whose employment had terminated within three years of the date of the Notices of Inspection. The Notices of Inspection also required employers to provide copies of payroll and other records relating to their current and former employees. Employers found by HSI to have failed to properly complete and retain I-9 forms were assessed civil fines, sometimes ascending to hundreds of thousands of dollars. In addition to civil fines, employers found to have engaged in a pattern or practice of knowingly hiring and continuing to employ aliens unauthorized to work in the United States faced criminal charges and even imprisonment.
For example, on September 28, 2017, HSI announced the largest civil settlement agreement in the history of INS/HSI worksite enforcement actions. After a six-year investigation, the employer, Asplundh Tree Experts, Co., pled guilty to unlawfully employing unauthorized workers pursuant to a scheme in which the highest levels of management remained willfully blind while lower level managers hired and rehired employees that they knew were not eligible to work in the United States. Following the guilty plea hearing, the employer was ordered to pay a forfeiture money judgment in the amount of $80 million. Pursuant to a separate Civil Settlement Agreement, the employer was required to pay an additional $15 million to satisfy civil claims for its failure to comply with immigration law.
Since President Trump’s election, there has been much speculation regarding whether President Trump’s HSI will continue to focus on employer non-compliance by issuing Notices of Inspection and assessing related fines and penalties or whether it will engage in investigations and raids which focus on apprehending and punishing employees who are not authorized to work in the United States. On October 17, 2017, acting ICE Director Tom Homan answered the question. Speaking to the Heritage Foundation, Acting Director Homan indicated that HSI plans to quadruple or quintuple its efforts to target employers who knowingly hire unauthorized workers and will prosecute them. He further announced that the agency will also detain and remove the unauthorized workers identified during its worksite enforcement actions. The latter statement marks a radical change from HSI’s enforcement approach under the Obama administration.
The obvious takeaway from Acting Director Homan’s statements is that to avoid these severe consequences, employers must continue to insist on strict compliance with the I-9 Requirement and implement and enforce policies ensuring that all new hires are authorized to work in the United States.