United States Immigration and Customs Enforcement (“ICE”) recently announced that it will be auditing approximately 1,000 employers, from a range of industries and of varying sizes, to verify they are complying with I-9 work authorization verification procedures. These new actions will bring ICE’s 2011 I-9 audit total to over 2,300 employers, already eclipsing the (then) record-setting 2010 number. While criminal prosecutions of companies who violate the I-9 laws are rare, ICE is flexing its civil sanction powers as never before and levying substantial fines for I-9 paperwork violations. Depending upon the number and severity of I-9 violations, these fines can add up quickly and ultimately reach tens or even hundreds of thousands of dollars. What can an employer do to prepare itself for these audits? More generally, what can a company do to demonstrate that it takes its I-9 compliance obligations seriously?
First, employers should conduct self-audits of I-9s on either an annual or semi-annual basis. These audits can be conducted by internal staff trained in proper I-9 completion and verification procedures or by outside advisors.
Second, consider purchasing an electronic I-9 management system. Most are Web-based programs that walk employers through the I-9 completion process, making it much less likely that errors are made.
Third, consider signing up for the Department of Homeland Security (“DHS”)’s E-Verify program. E-Verify is an Internetbased system that allows employers to verify electronically the employment eligibility of newly hired employees. Once registered, employers submit an electronic query to determine an employee’s work authorization. E-Verify then compares the information submitted against millions of records stored in DHS and Social Security Administration databases and gives the employer an instantaneous response regarding that employee’s work eligibility.
While most private employers are not currently obligated to sign up for E-Verify, it may well be only a matter of time before they will be required to do so. Several states, including Alabama, Arizona, Mississippi, and Utah, have already passed laws requiring all employers (public and private) to use E-Verify to verify the employment eligibility of employees. In addition, the United States Supreme Court, in Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011), recently held that the Arizona law mandating E-Verify was not preempted by federal immigration law and therefore was constitutional. This holding will likely embolden more states to pass similar mandatory E-Verify laws. Furthermore, Rep. Lamar Smith (R-Texas) has recently introduced a bill which would mandate the use of E-Verify nationwide. Note that electronic I-9 compliance programs typically integrate E-Verify into their products.
Finally, consider voluntarily enrolling in ICE’s Mutual Agreement between Government and Employers (“IMAGE”) program. Under IMAGE, employers agree to allow ICE to audit a random sampling of their I-9s and to follow certain pre-established best employment practices. In return, enrollment in IMAGE provides certain favorable benefits to employers. First, if ICE finds that fewer than 50 percent of the I-9s it has audited have so-called substantive violations, ICE will waive any applicable fines. (If ICE auditors find more than 50 percent of the audited I-9s contain substantive violations, they agree to seek only the minimum penalty per violation). In addition, ICE agrees not to conduct any further I-9 audits for future hires for at least two years (unless it learns of specific information indicating that the company knowingly is employing unauthorized workers). This provides peace of mind in knowing that an ICE investigator will not come knocking again at any time over the next twenty-four months. And, most important of all, ICE may be willing to guarantee that at no time in the future will any of the I-9s it either has audited or could have audited be subject to any future I-9 audits or penalties. In effect, this is an offer of a blanket type of amnesty that employers may be able to negotiate with ICE as an incentive to join the IMAGE program