The Obama administration is absolutely committed to continue to increase employment eligibility verification worksite enforcement and I-9 compliance resources in an effort to crack down on employers who hire undocumented immigrants. Department of Homeland Security’s (DHS) employment eligibility verification, or Form I-9, enforcement agency is Immigration and Custom Enforcement (ICE). ICE received substantial enforcement budget increases in FY 2009 and FY 2010.
ICE has launched hundreds of investigations nationwide. ICE and other federal agencies have hired hundreds of new investigators to inspect your I-9 records. In one week in 2009 more business were hit with I-9 fines than in all of 2008.
Recently, an internal ICE memorandum from April of 2009 detailing ICE’s enforcement strategy was made public. ICE’s worksite enforcement priorities emphasize continuing worksite investigations, including “criminal cases against employers who hire and use illegal workers.”
The memo specifies the ICE enforcement strategy will include: penalizing employers who knowingly hire unauthorized workers; deterring employers who are inclined to hire unauthorized workers; and encouraging employers to make sure that they are in compliance with immigration regulations.
ICE’s enforcement guidelines require ICE officers to “obtain indictments, criminal arrests, or search warrants or commitment from a U.S. Attorney’s Office to prosecute target employers before arresting employees for civil immigration violations at a worksite.” (emphasis added).
ICE encourages agents to use informants, cooperating witnesses, undercover agents, consensual searches and I-9 audits as investigative tools.
The memo states that ICE’s “most important administrative tool” in conducting investigations is the Notice of Inspection, or NOI. ICE inspections include a comprehensive review of the employer’s entire employment eligibility verification process, including its I-9 forms and training and recordkeeping procedures.
You are liable as an “employer” if you are an owner, executive, supervisor or manger. I-9 employment eligibility enforcement may involve either civil fines or criminal prosecutions.
Civil fines range from $110 to $1,100+ per occurrence—an occurrence is a single I-9 Form. Criminal penalties include imprisonment, asset forfeiture and forfeiture of profits. (Not to mention the lawyer’s fees you pay along the way to defend the company and company executives, officers, managers and supervisors pay to defend themselves.)
Any business owner, executive, supervisor or manger can face multiple federal criminal charges including Harboring Illegal Aliens, Inducing Aliens to Enter the United States for Commercial Purposes, Making False Statements on a Form I-9, Aiding or Abetting an employee’s false statement, and Conspiracy to commit immigration law violations.
Liability is assessed for constructive knowledge, not actual knowledge. Constructive knowledge can be based on errors in I-9 Forms whether or not in the employee’s Section 1 or the employer’s Section 2.
Form I-9 compliance is becoming more complicated. Last year alone there were more than 80 changes to the I-9 laws.
Faced with federal criminal prosecution and possible imprisonment companies, executives, managers and supervisors are pleading guilty and agreeing to fines and less jail time rather than fighting costly, time consuming and what would ultimately be losing battles in federal criminal court.
Businesses are pleading guilty to I-9 violations in record numbers. Employers are paying record fines for I-9 errors and violations. Employers are forfeiting assets and “profits” made from employing workers who are not authorized for employment.
Company owners, executives, managers, supervisors and human resources managers have no effective defense for improper I-9 compliance practices. The Department of Justice’s Office of Chief Administrative Hearing’s Officer (OCAHO) recently ruled that a “good faith” defense was unavailable in a paperwork violation case. The ruling suggests that employers will not be able to avoid significant fines based on cooperation after the fact, good faith or ignorance of the law.
Employers must ensure that they do not hire or continue to employ workers they know to be ineligible for employment. Employers must also ensure that they are in full compliance with all regulatory requirements in case of government investigation.
Every employer, regardless of size, must regularly review its Forms I-9 compliance practices. It is quite simply negligence not to regularly review your I-9 compliance practices and training.
Goulder Immigration Law Firm in North Carolina assists clients throughout the United States with their I-9 and employment eligibility verification practices, procedures and training. These Form I-9 services assist companies to develop I-9 compliance best practices, including preparing written policies and procedures, training human resources or other staff who handle your I-9s, conducting regular internal company I-9 audits, and preparing you to properly respond to an ICE I-9 investigation or ICE worksite enforcement action. These recommended best practices will help ensure that only persons lawfully authorized to work are allowed access into your workplace. As part of our services, we will work with you to make any corrections required on your employees' I-9 Forms.
Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world. His services assist employers to avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies for all aspects of proper Form I-9 compliance and conducting internal company I-9 audits of its Forms I-9. His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide additional information on employer liabilities for Forms I-9. Contact him at 1-866-US VISAS.
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