As the new administration focuses on enforcement, employers should prudently focus on ensuring an immigration-compliant workforce and verification system.
For much of Virginia, it was a relatively mild winter. This year brought no "Snowmaggeddons." Northern Virginia witnessed cherry blossoms blooming in February. Many celebrated several consecutive days in the 70s across the Shenandoah Valley in what is usually the dead of winter. Ice may not be on the minds of most employers this time of year, but ICE (Immigration and Customs Enforcement) should be. The new Trump Administration has approached many immigration issues by prioritizing full enforcement of existing laws and regulations. In this heightened atmosphere, clients would be well-advised to ensure their workforce and employment verification documentation are in order should ICE arrive unexpectedly.
Employers Are Subject to Investigations and Penalties
US immigration laws apply to all domestic companies — even those that do not sponsor foreign workers. Generally speaking, under the federal laws, only US citizens and nationals, lawful permanent residents (i.e. people with Green Cards), people with employment authorization in conjunction with sponsorship, and other individuals who are specifically authorized employment may be gainfully employed in the United States. It is unlawful to hire, recruit or refer for a fee, a person who is not authorized to work in the US.1 Employees are defined under the immigration laws as individuals who provide "services or labor for an employer for wages or other remuneration," with exclusions in the context of casual hires or independent contractors.2
In 1986, Congress passed The Immigration Reform and Control Act (IRCA), which provided the modern employment eligibility verification system, Form I-9 and its associated regulations.3 For every employee hired after November 6, 1986, employers must ensure that Form I-9 is correctly completed. Independent of the verification itself, Form I-9 must be retained for the later of 1) three years after hire or 2) one year after separation from the employer.
The Form is divided in three sections and was recently redesigned.4 The employee must complete the first section no later than the first day of employment, but not before accepting a job offer. In this section, the employee provides biographical information and attests, under penalty of perjury, of his/her immigration status. The second section must be completed by the employer or authorized representative. An employee must be given the instructions to the form at the time of verification, allowing for the option to prove his or her identity and employment authorization.5 Employers must inspect the unexpired originals of these documents, and have the option to copy and retain the documents if desired. Section Two must be completed and certified no later than the third day of employment. The third section is used in situations where an employee needs to be reverified (e.g. a work-authorized visa status expired and was extended) or for rehires. The most recent version of the form has "smart" features, greatly simplifying the completion process through use of PDF software. Nevertheless, it's far from fool-proof.
Form I-9 Enforcement
Most employers never cross paths with ICE, yet Form I-9 compliance is not on the "honor system." The government may serve a Notice of Inspection whereby an employer must generally within three business days respond to the government's request. ICE generally seeks that the employer furnish relevant documentation regarding the employees and operations, such as all Forms I-9, lists of current and previous employees with hire dates, payroll records, lists of independent contractors, corporate governing documentation, business licenses, tax records, and similar documentation.6
There are two types of form-based violations7 of I-9 protocols: technical and substantive. Generally, technical violations are typographical errors that can be corrected without requiring reverification, such as omitting the employer address in Section Two. Substantive violations, on the other hand, are generally deficiencies in the verification method itself, such as acceptance of an improper combination of documents. Monetary fines range from $216 to $2,156 per violation.8 The higher amounts in this range are applicable where there are multiple instances of ICE finding violations and that the violations are widespread across the company. Additional factors such as a company's good faith and size are also relevant in aggregating or mitigating fine amounts.
Following an inspection where errors are found, ICE will issue a "Notice of Technical or Procedural Failures" allowing the employer ten business days to correct technical errors lest they be deemed substantive. ICE could then issue a "Warning Notice," generally providing employers with a list of substantive violations and urging future compliance. Naturally, such employers are at higher risk of future audits. If fines are sought, ICE will issue a "Notice of Intent to Fine." Employers have thirty days thereafter to lodge an administrative review with the US Department of Justice's Office of the Chief Administrative Hearing Officer (OCAHO).
It is important to note that Form I-9 fines are levied against companies of all sizes and across all industries. In 2010, Abercrombie's noncompliant Form I-9 system led to a settlement of over $1 million.9 In a recent case,10 OCAHO upheld a $33,725 penalty against a small restaurant business that had no unauthorized workers or previous violations. The restaurant, however, failed to timely present/prepare Forms I-9 for four employees and properly complete Forms I-9 for sixty-seven employees. Even state and local government entities are not immune to prosecution.11
An Ounce of Prevention
Counsel should of course be contacted immediately upon service of the Notice of Inspection. Experienced I-9 attorneys can negotiate additional time to respond and even conduct a self-audit of all forms prior to response to ensure that any fines to be levied will be minimized or perhaps a Warning Notice issued in lieu of a fine. Yet the best defense to I-9 audits is implementing a compliant Form I-9 system proactively. Below are some preventive measures that every employer should consider to maximize compliance:
- Develop a comprehensive I-9 policy. The best policies are written and strictly followed to increase accuracy in form completion. Only those trained in employment verification methods should be permitted to handle I-9 completion on behalf of the company.
- Build a comprehensive internal training system. Individuals tasked by a company to handle Form I-9 verifications must be trained well. USCIS provides a comprehensive Form I-9 manual called the M-274. This document is lengthy, but should be considered required reading. The main points of Form I-9 completion should be distilled into a clear process for new HR employees.
- Provide a system of secondary review for each Form I-9 to be completed. Two sets of eyes are better than one. A second reviewer is more likely to spot inadvertent errors such as accepting expired documents or certain parts of the forms that were not properly completed.
- Institute periodic Form I-9 audits. Most immigration law firms offer services where they may step into the shoes of ICE and audit the forms. They may then oversee corrections and advise on reverifications as needed. Such good faith efforts are relevant should ICE ever audit the company. This may also identify old forms to be purged as permitted by the law.
- Establish a tickler system for reverifications. As described above, some employees with temporary work authorization (such as nonimmigrants) need to be reverified upon expiry of their status or documentation. By instituting a tickler system, HR personnel will be alerted of when to timely reverify employees.
At the other end of the enforcement spectrum lie actions aimed at those employing non-work authorized individuals. These actions have fines of their own, ranging from $539 to $21,563 for each unauthorized worker.12 Employers engaging in a "pattern and practice" of such hires may also be subject to criminal liability, including jail time. Historically, many of these penalties have resulted from worksite raids.
For the most part, the Obama administration ceased the Bush-era raids against businesses targeted to detain those without status and punish their employers. ICE agents have recently made national headlines following raids aimed at individuals; yet many in the immigration bar are bracing for worksite raids to begin again. An employer's bona fide effort to ensure an employment-authorized workforce is the best defense to an ICE raid.
Why do such raids occur? ICE is often tipped off to a targeted business after receipt of intelligence of unlawful employment. Tips may come from the questioning of an undocumented employee (perhaps arrested in an unrelated event) as to where he or she works and the makeup of the workforce. The public might also provide ICE with tips. During a raid, ICE will enter a building with the goal of creating chaos, storming the premises, and sealing off any exits. Despite what is to be an incredibly stressful situation, employers should consider a plan to implement best practices13 should ICE raid their companies. Such best practices include designating a company official to speak with the head ICE agent, demanding to see a search warrant, recording the activities of the agents,14 and sitting in on any interviews with employees. ICE activities also attract media attention, and negative publicity will need to be adequately handled.
For decades, the inauguration of a new administration has frequently signaled changes in immigration enforcement priorities. President Trump's emphasis on enforcement has put many employers on edge. In these heightened times, employers should take proactive measures to ensure a compliant workforce and Form I-9 verification procedures.
1 See Immigration and Nationality Act ("INA") at §274A(a)(1).
2 8 C.F.R. § 274a.1(f).
3 Available for download at https://www.uscis.gov/i-9.
4 The new edition date is 11/14/16, and is mandatory for all new verifications starting Jan. 22, 2017. Present use of a previous edition would subject an employer to liability.
5 Specifically, employees are given the option of either providing one "List A" document or a combination of List B and List C documents. List A documents, such as a U.S. passport, prove identity and work authorization. List B documents, such as a VA Driver's License, prove identity. List C documents, such as an unrestricted Social Security Card, prove employment authorization.
6 See, e.g., "Form I-9 Inspection Overview" available at https://www.ice.gov/factsheets/i9-inspection.
7 Independent of these specific types of violations, penalties exist for other practices such as document abuse (e.g. requesting employees provide more or different documents than required by Form I-9), discrimination based on national origin or citizenship status, and noncompliant electronic I-9 systems. For more information, visit https://www.justice.gov/eoir/office-of-the-chief-administrative-hearing-officer-decisions. Discrimination-related prosecutions are handled by the Civil Rights Division's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).
8 USCIS, I-9 Central Penalties, available at https://www.uscis.gov/i-9-central/penalties.
9 See "The $1 Million Mistake: Abercrombie & Fitch To Pay For Electronic I-9 System Deficiencies" http://www.lawlogix.com/the-1-million-mistake-abercrombie-fitch-to-pay-for-electronic-i-9-system-deficiencies/
10 See U.S. v. 3679 Commerce Place Inc., 12 OCAHO No. 1296 (Jan. 19, 2017).
11 For example, OSC recently settled a case with the Aldine, Texas, Independent School District resulting in a $140,000 civil penalty. See "Justice Department Settles Immigration-Related Discrimination Claim Against Aldine Independent School District" https://www.justice.gov/opa/pr/justice-department-settles-immigration-related-discrimination-claim-against-aldine.
13 See Gonzalez, J. and Merritt, N., "The Anatomy of an ICE Raid," AILA's Guide to Worksite Enforcement & Corporate Compliance 179 (2008 ed.). This article provides an excellent discussion of best practices and a play-by-play of ICE activities during a raid.
14 Attorneys must review the laws of the local jurisdiction to see whether recording activities might run afoul of wiretapping laws. This is a rapidly evolving area of the law in the era of the smartphone.
Originally published by Virginia Lawyer, April 2017.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.