January 25, 2013
Margaret H. ("Peggy") McCormick
Worksite Enforcement has been the hallmark of immigration enforcement priorities during the Obama Administration. The number of I-9 audits of all types of employers reached record highs in 2012 and is only likely to grow over the next four years. In fiscal year 2012, over 3000 business were audited by Immigration and Customs Enforcement, up from just 250 five years earlier, with fines of over $13 million. In addition to civil penalties, criminal prosecutions for knowing hires of undocumented workers have been on the rise as well.
Everyone is buzzing about the possibility of Immigration Reform in 2013, perhaps as early as the first quarter. There is talk of a path to citizenship for the 8 to 12 million undocumented people in the U.S., an expansion of employment based immigration opportunities for both high and low skill workers and an improvement and expansion employer sanctions. It is anticipated that an important part of any immigration reform will include increased worksite enforcement actions.
The employer sanction requirements of the Immigration Reform and Control Act of 1986, which was also the law that offered legalization to about 3 million people, was largely unenforced until Obama became president in 2008. Today, more than 25 years after that law was enacted, many employers are unaware of their obligations, believing the I-9 verification requirements to be necessary only if they are employing foreign workers. Because ICE has stepped up enforcement over these past four years and some states have even passed their own laws to deter unlawful employment, more human resource professionals are realizing the risk associated with ignoring these requirements.
If a company receives notice of an audit from ICE, they are required to produce completed I-9 forms for virtually all of their current employees and some of their past employees within a very short period of time. Our firm will often receive a panicked call from a company on the receiving end of these notices, asking us to review their I-9 forms on an emergency basis. It is truly amazing how such a simple, one page form, can have the possibility for so many errors, which must be analyzed in terms of “substantive” and “technical” violations. The fact is, there is a 69-page Employer Manual provided on the USCIS website with Instructions for Completing Form I-9 (the Employment Eligibility Verification Form). After reading the manual, it will not be so surprising that so many errors can be made.
Substantive violations will often result in fines while technical violations can generally be corrected. Technical violations include such things as failure to state an employee birth date, an employee attestation date; failure to state the document ID number, if copies of the document are attached, or failure to state the business name or address of the employer. Examples of substantive violations include:
- The employer or employees’ failure to sign the attestation
- No employer or authorized representative printed name in attestation
- No check mark indicating whether the employee attests to being a U.S. Citizen, Lawful Permanent Resident, or alien authorized to work
- Review of improper documents
- No document title, identification number, or expiration date of List B or C document
Because the task of verifying employment eligibility is frequently handled by a person who does not understand the implications of the form, the errors described above can easily be made by the most well-intentioned of employees. In the rush of completing all the forms required for a new employee, it is easy to overlook the potential damage that may be incurred by careless completion of this form. It becomes painfully clear if the company is served with a notice of an ICE audit that in almost every instance it would have been so much better if the company had conducted a self-audit.
We urge companies to consider a self-audit of their I-9 forms in advance of an ICE audit so that, in a timely manner, errors can be corrected and strategies can be put in place going forward to ensure that a visit by ICE will not completely disrupt the company. A self-audit generally involves a review of all existing I-9 forms and company policies relating to Form I-9 completion. The self-audit process is best carried out under the guidance of an attorney experienced in worksite enforcement and compliance issues.
If Congress passes comprehensive immigration reform, bringing many of the people living and working in the U.S. illegally out of the shadows, there is sure to be much increased vigilance in the employer sanction aspect of the law to deter future illegal employment. The 1986 Act was not enforced until recently, but it is now clear that the government can and will enforce this law, especially if a legalization program is installed. The best advice we can give employers is to conduct a self-audit sooner, rather than later and to consult with knowledgeable counsel for effective remediation of all of the pertinent I-9 Verification forms in your company.