Form I-9 and Hiring Process Reviews and Training Are Critical to Avoid Fines and Criminal Sanctions

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.

Democrats Begin New Legalization Push: Unfortunately They Will Once Again Doom Chances for Meaningful Immigration Reform

Building Bi-Partisan Support, Allowing House and Senate Debate, and Trying ‘Smaller Bite at the Apple’ Bills Would Be More Effective in Getting Positive and Meaningful Immigration Reform

Democrats on Tuesday began their new push for an immigration bill, hamstrung by the image of legalizing millions of illegal immigrant workers at a time when the unemployment rate stands at 10 percent -- more than twice what it was in 2007 the last time Congress tried to act.

A draft overview of the bill, circulated with the letter, ends some enforcement tools such as the 287(g) local police cooperation program, calls for an electronic verification system to replace the voluntary E-verify program, argues that there's no need for more U.S. Border Patrol agents or fencing, and establishes a long-term path to citizenship for illegal immigrants.

That path would require illegal immigrants to pay a $500 fine, pass a background check and learn English and civics to gain legal status. After six years, they could apply for legal permanent residence, or a green card, which is the interim step to citizenship. There is no 'touchback' provision requiring them to return to their home countries at some point in the process.

Republicans are sharpening their attacks and going straight for the jobs argument. “With 15 million Americans out of work, it's hard to believe that anyone would give amnesty to 12 million illegal immigrants,” said Rep. Lamar Smith of Texas, the top Republican on the House Judiciary Committee. “Even the open-borders crowd agrees that illegal immigrants take jobs from American workers, particularly poor and disadvantaged citizens and legal immigrants. This is exactly why we need to oppose amnesty.”

His office has calculated that there are 19 states where the number of illegal immigrants in the work force is at least 50 percent of the number of unemployed workers.

Arizona tops the list, with unemployment at 293,000 as of October and with 300,000 illegal immigrants either working or seeking work as of 2008, according to a 2009 Pew Hispanic Center report. New Jersey, Nevada, Maryland and Texas round out the top five states.

More astute political observers have already voiced concern that the Obama administration has too much on its plate with the economy and health care reform issues.  “They can introduce the bill, but it’s going to have a very difficult time with all of the other agenda items,” said James Thurber, director of American University’s Center for Congressional and Presidential Studies. “We have lots of Democratic seats in trouble in the House, and this particular issue is an issue that doesn’t play very well in some of those Blue Dog districts. I think the leadership will be very careful about pushing it, and the president will also.”

So far, however, Democrat leaders Pelosi and Reid have not been too interested in building bi-partisan support for the Obama legislative agenda, which many feel has already damaged Obama’s approval ratings and portends damage to the Democrats in the 2010 midterm elections.

Supporters of legalization acknowledge the tough sell on jobs but say the math is more complex than stacking unemployment and immigration numbers against each other.

In 2006, at President Bush's urging, the Senate passed a bill to legalize most illegal immigrants and to boost security. That bill stalled when the House insisted on an enforcement-only approach.

In 2007, with Democrats in control of Congress, the Senate tried again.  The comprehensive immigration reform failed in 2007 because Senate Majority leader Harry Reid insisted on holding immigration reform hostage to partisan politics.

Reid insisted, in 2007, that there could be no debate on his bill which was brought forth by a gang of 10 with a “take our bill or too bad” attitude.  The only vote in 2007 was to cut off debate on the take it or leave it bill.  The majority of the Senate voted to allow debate.  When the Senate voted for debate on the bill Reid pulled the bill off the table and shut off the chance for any immigration reform.

I was in the senate gallery for the debate and vote.  It was clear many Republican Senators favored some form of immigration reform, and voted for debate.  Reid’s action was despicable.

The Democrats insist on immigration reform being a “one bite at the apple”, all or nothing, my way or the highway bill, ostensibly because they want the Republicans to have to take any heat of a “no” vote.

In fact, the Democrats do the country and millions of undocumented’s a terrible injustice. The fact is there are many, many immigration reforms that the American public would support and smaller bites at the apple, through multiple, more specific bills would probably pass.

For example, why remove hundreds of thousands of undocumented parents of United States citizen children and spouses of U.S. citizens?  What purpose does it serve to remove family income earners from families of U.S. citizens?  These are not criminals; these are parents of citizen children and spouses of citizens.  These are sponsored immigrants.  These are family providers. These are not criminals. The American public “gets this”.  Taxpayers don’t want to have to support U.S. citizens after forcing good parents, father, mothers, husbands and wives to depart the U.S.

Congress could also change the outrageously high standard of proof an undocumented spouse or parent of a U.S. citizen has to establish to be eligible for the discretionary grant of waiver of inadmissibility after having been unlawfully present in the U.S.  Presently the standard of proof is “extreme and unusual hardship” to the qualifying citizen spouse or child.  A lower hardship standard would serve the same purpose and enable more waivers and permanent residence for these families.

The public outcry appears based on concerns for continued illegal immigration across the U.S. southern border.  The American public was hood winked in the 1986 immigration reform “amnesty” because the border was not made less porous. 

It strikes me that it would be common sense politics to build bi-partisan support by providing guaranteed funding for the southern border “fence” which would cost less than $14 billion.  Funding a southern border fence would satisfy the vast majority of public opposition to immigration reform.

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.  Immigration law is a federal law practice not limited attorneys in a particular state. Contact Gerald Goulder through his authoritative website www.gouldervisa.com or by calling toll free 1-866-US VISAS.

DHS Test for Employer "Constructive Knowledge" of Form I-9 Violation or Unauthorized Employment—Totality of Circumstances

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.