Employers are liable for Form I-9 errors and violations of the I-9 employer sanctions laws. The new ICE I-9 workplace enforcement strategy targets employers. Employers must complete a Form I-9 for every new hire. Thus, employers must have a Form I-9 properly completed and on file for every employee on its payroll (hired after 1986). Employers are required to make its Forms I-9 available for inspection on three days' notice.
Employers are subject to civil money penalties for failure to properly complete and retain Form I-9 for every employee. The I-9 violation civil fines range from $100 to $1,100 per violation. The civil penalties are on a per Form I-9 or per occurrence basis.
Employers are also subject to criminal fines and imprisonment for I-9 violations and employment of unauthorized workers. Owners, executives, managers and supervisors are subject to this criminal liability.
The employer (and its executives, managers and supervisors) are liable for employing unauthorized workers. The employer's actual knowledge that a worker is not authorized for employment is not required for liability. The employer (and its executives, managers and supervisors) are liable if they have "constructive knowledge" a worker is not authorized for employment.
According to the DHS "the totality of the circumstances" determines the employer’s "constructive knowledge" in a given case. DHS’ position is that a reasonable employer would act prudently if it has any notice of circumstances that suggest an employee is not employment authorized. DHS' specific guidance states that an employer’s receipt of a No-Match letter (Social Security Number No-Match letter) may support a finding of constructive knowledge in the totality of circumstances.
DHS has been silent on what it considers “good faith” compliance with Form I-9 and employer sanctions laws.
In many cases employer liability is derived from errors in completing its Forms I-9, "Employment Eligibility Verification".
I am reminded on an almost daily basis in my immigration law practice that there has been a cultural shift in the United States concerning compliance with laws and regulations. Virtually every day a client lets me know that a law or regulation doesn't make sense. [Of course, more often than not this can be a reasonable reaction in immigration law.] Many very responsible folks make a self-determination that when a law doesn't make sense to them, that there will be leniency in enforcement. Trust me, there is no employer above the law when it comes to Forms I-9 compliance, regardless of how picayune a Form I-9 error may seem.
Clearly, if ICE contacts one of my clients concerning specific Forms I-9 matters then I am extremely concerned that notice, in and of itself, may trigger constructive knowledge liability for Form I-9 violations and employment of unauthorized workers.
Currently, it is almost impossible for me to overstate to my clients their need to conduct internal I-9 company audits and provide regular training on I-9 compliance.
Quite honestly, I recently recommended that a public company revamp its internal I-9 systems and told them it was probably negligent to not conduct I-9 internal company audits and regular I-9 training. Public companies face Sarbanes-Oxley issues and shareholder liability issues when they management fails to act prudently.
Errors on Forms I-9 may be innocent. But even simple errors on Forms I-9 will result in costly civil penalties on a per Form I-9 and per occurrence basis—from $110 to $1,100 per I-9 Form. An erroneous Form I-9 is the employer’s liability and supports a finding that the employer had actual or constructive knowledge that the employee was not authorized for employment.
When ICE comes knocking on doors for Forms I-9 the employer has only three days to produce all Forms I-9 and I-9 documents for inspection. It is likely ICE will also want additional information concerning: employees terminated within the last six months with SSNs; all correspondence with the Social Security Administration; all correspondence with the Department of Labor and state wage and Hour Division(s); quarterly wage and hour statements; and, your tax returns.
Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world because immigration law is a federal law practice not limited attorneys in a particular state.
Gerald Goulder has been a licensed attorney and counselor at law for 30 years. His practice is exclusively immigration, visa and citizenship law.
His broad professional background includes working as a special state prosecutor, owning and operating a business, serving on boards of non-profit organizations, religious organizations and private corporations, and taking political leadership roles. Mr. Goulder has also worked as an Assistant Attorney General of Ohio, and Ohio Special Prosecutor in law enforcement and prosecution, and he was appointed Special Counsel to the Attorney General of the State of Ohio. Although his private practice initially involved commercial, business, and corporate/commercial real estate matters, he now practices exclusively immigration, visa and citizenship law.
Goulder Immigration Law Firm also assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services. Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws.
Gerald Goulder, managing partner of Goulder Immigration Law Firm, is a North Carolina immigration lawyer with clients throughout the world, guarantees personal service to every client. Clients receive one-on-one direct access to immigration attorney Gerald Goulder on phone calls, emails, or letters. If you are seeking guidance, experience and knowledge of immigration and visa laws involving family-based or employment-based permanent residence and green cards, visas, or citizenship, do not hesitate to contact Goulder Immigration Law Firm.
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