Given an increase in federal investigations, employers in industries paying hourly wages should prepare now for I-9 audits and investigations to ensure compliance with federal immigration laws.

Recent raids on seven Mississippi chicken processing plants in August 2019 are part of a larger trend of increased audits and investigations by Immigration and Customs Enforcement (ICE). During the recent raid on a Koch Foods Inc. plant, over 680 workers were arrested. In fiscal year 2018, ICE conducted 5,981 I-9 audits and increased the number of worksite enforcement investigations by 500% to 6,848. Some investigations have resulted in criminal convictions of human resource managers and business owners, particularly where such individuals knowingly employed undocumented workers.

The I-9 Form

The Immigration Reform and Control Act of 1986 (IRCA) requires employers to fill out an I-9 form for all employees hired since November 6, 1986, regardless of their immigration status in order to accurately determine the new employees’ immigration status. The purpose of the I-9 is to verify the identity and employment authorization of workers. In the first section, the employee attests, under penalty of perjury, that he or she is a citizen, lawful permanent resident, or foreign national authorized to work temporarily. In the second portion, employers are required to record that they have examined original documents from a specified list verifying the employee’s identity and eligibility to work. Employers must accept the documents if they appear “reasonably genuine” and relate to the person presenting the documents. The failure to properly complete an I-9 form may result in a civil fine of $2,292 for each form.

“Knowing” an Employee Is Not Work-Authorized

In addition to the affirmative employment verification required through the I-9, employers must also terminate an employee’s employment when the employer acquires knowledge that the employee is not authorized to work. IRCA prohibits any person or entity from knowingly hiring or continuing to employ an unauthorized worker. Knowingly employing more than ten unauthorized workers may result in five years imprisonment. “Knowledge may be either actual (employer knew) or constructive (employer should have known).” Constructive knowledge is defined as knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. A rebuttable presumption of constructive knowledge may exist where, among other things, and employer: (1) fails to complete or improperly completes the I-9 form; (2) has information that would indicate that the foreign national is not authorized to work; or (3) acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized foreign national into the workforce.

Constructive knowledge has been specifically found where employers ignored notices from INS stating that certain employees were not authorized to work. However, the U.S. Court of Appeals for the Ninth Circuit overruled an administrative law judge’s (ALJ) finding of constructive knowledge where the employer had failed to notice that the employee’s name was misspelled on his social security card and that the card lacked lamination. The court disagreed with the INS’s argument that constructive knowledge should be found where the employer failed to notice the delay in presentation of a social security card, the lamination of the card, the misspelling of “Rodriguez” as “Rodriquez,” the lack of any reference to the United States on the card, and the use of two family names on Rodriguez’s driver’s license but not on the card. The Ninth Circuit noted that “to preserve Congress’ intent … the doctrine of constructive knowledge must be sparingly applied.” More recent cases have broadened the interpretation of constructive knowledge to include instances where an employer is in possession of an I-9 which indicated the noncitizen was out of status, but failed to re-verify.

Social Security “No-Match” Letters

In 2019, the Social Security Administration (SSA) resumed sending so-called “no-match” letters to employers where an employee’s name and social security number (SSN) provided on a W-2 form conflicts with SSA records. Out of the 245 million W-2 forms submitted, 10 percent of those forms contain non-matching SSNs.

When faced with these no-match situations, and under “safe-harbor” regulations issued by the Department of Homeland Security, employers must: (1) attempt to resolve the discrepancy within 30 days; and (2) re-verify employment authorization through the I-9 procedure within 93 days. If the employer completes a new I-9 for the employee, it should use the same procedures as if the employee were newly hired, except that documents presented for both identity and employment must: (1) not contain the SSN, although the alien number may be used for employment authorization; and (2) must contain a photograph. While the final DHS regulation providing this guidance was rescinded in 2009, the regulation still represents the most complete guidance the federal government has provided to date to employers on how to respond to “no-match” letters.

Under the Trump administration, there has been a shift towards well-publicized ICE raids and low-profile audits resulting in civil fines against egregious employers. Worksite enforcement will remain a cornerstone of any comprehensive immigration reform. As with IRCA, which legalized millions of workers while imposing new obligations on employers, any new immigration reform bill will likely impose a higher standard of due diligence upon employers. Given the government’s continued enforcement efforts, simple precautionary measures—such as internal audits and strict compliance with I-9-related regulations—are now more important than ever.