Franchise owners of a national convenience store chain were indicted in June for employing unauthorized workers and related charges. The employers may be responsible for fines estimated at $30 million and face up to 20 years in prison. These charges, arrests and seizures resulted from a U.S. Immigration and Customs Enforcement Investigation. ICE is the enforcement arm of the Department of Homeland Security.

ICE's enforcement activities have intensified in recent years with a record-breaking number of investigations, arrests and Form I-9 audits. ICE conducted more than 3,000 I-9 audits in 2012 and fined employers $13 million. The retail industry is one of ICE's largest targets with restaurants, clothing stores and discount stores receiving the highest fines in history.

Every employer in the United States must complete a Form I-9 to verify the employment authorization of each employee. The Form I-9 appears simple, but creates numerous and complex compliance issues for employers. Unlike ICE's other activities, the goal of an I-9 audit is not to locate and deport illegal workers; rather I-9 enforcement is focused on the strict requirements for accurate completion of the I-9 form itself. Employers need not employ any foreign workers to be subject to large fines. Errors on the form can result in fines that ranges from $110 to $16,000 per violation, per form.

Every employer should have a formal policy for completing, verifying and retaining I-9 employment authorization documentation. An employer's best defense to an I-9 Audit conducted by ICE is a consistent pattern and documented program for I-9 compliance. After implementation of a consistent compliance program, an internal I-9 audit is necessary to ensure the employer has protected itself against the increasingly heavy fines imposed during ICE audits and investigations. Regular self-audits ensure "good faith" in hiring practices, complicated form completion and may even reduce the fine per violation in the event of a government audit.

Gardere attorneys have experience in and are available to assist with:

  • Representing employers during ICE I-9 audits and preparing the audit response;
  • Establishing compliant, "good faith" I-9 programs for companies;
  • Performing self-audits for employers, reviewing I-9 documentation nationwide; and
  • Providing training on the new Form I-9 released in March 2013.

In the wake of proposed immigration reform which urges harsher penalties for non-compliant employers, Form I-9 audits, investigations, and indictments like those of retailers nationwide will continue to increase.