Most U.S. employers are aware of some immigration law requirements imposed upon them, but, frequently, this knowledge is limited to the general fact that companies are not to employ illegal workers. Unfortunately, this is not the only issue to take under consideration and the following updates from the government tell the story.
The U.S. Immigration and Customs Enforcement (ICE) concentrates on its recently adopted enforcement strategy that entails audits, investigations, civil penalties, and criminal prosecutions against employers that intentionally use unauthorized workers, mistreat the workforce, participate in human trafficking or identity fraud, or launder money. During the recently ended government’s fiscal year, ICE had served more than 3,000 Notices of Inspection and issued nearly 500 Final Orders (i.e., orders to pay fine) to U.S. employers, which resulted in $12,475,575.00 in administrative fees and fines. 376 businesses were debarred from immigration benefits for administrative and criminal violations, and more than 500 criminal arrests were made based on worksite enforcement audits and investigations.
While criminal prosecutions are tied to serious and intentional misconduct, immigration penalties are not limited to employers that engage in wrong behaviors. In fact, honest businesses can also fall victim to the government’s enforcement efforts and pay fines for unintentional misbehavior. To become effective and efficient at immigration compliance and to avoid fines, every employer should consider the following steps:
- Review immigration compliance practices and procedures;
- Proactively self-audit Form I-9 files and take appropriate corrective measures. Repeat self-audits every 6 months and after every hiring surge and any corporate changes at the company (e.g., mergers, acquisitions);
- Designate personnel responsible for immigration compliance and ensure that all established procedures are followed consistently and on a regular basis;
- Provide training and refresher training to the designated immigration compliance personnel; and
- Consider E-Verify registration and discuss advantages and disadvantages of same with immigration counsel.
In case of a government audit, which is most frequently conducted as an I-9 paperwork audit resulting in fines for I-9 compliance violations as well as employment of illegal workers, employers should a) never waive the mandatory 3-day audit notice, b) obtain the auditors’ contact information for possible extension of time negotiations, and c) consult immigration counsel without delay in order to plan the audit response.