Employers Beware - ICE May Be Coming to Visit You! - American Society of Employers - Kristen Cifolelli

Employers Beware - ICE May Be Coming to Visit You!

Think about the state of your I-9 forms—are you confident they are completed correctly and compliant? Now think about ICE knocking on your door and asking to audit your I-9s and compare them to your hiring records. Does either or both of these thoughts make you break out in a cold sweat? 

Like most Human Resource Departments pressed for time and resources these days, doing a self audit of I-9 forms and hiring practices rarely makes it to the top of the daily to-do list.  But employers need to beware—they are the latest target of Immigration and Customs Enforcement (ICE) officials looking to stamp out the hiring of illegal immigrants.

According to The Wall Street Journal, the U.S. government has recently launched a fresh crackdown on employers suspected of hiring illegal immigrants by notifying about 1,000 businesses across the country that they must submit documents for audits. These so-called “silent raids” are the most since July of 2009 when the same number of companies were targeted.  In the last four years, the government has audited at least 10,000 employers suspected of hiring illegal labor, and imposing more than $100 million in administrative and criminal fines. And if that isn’t bad enough, Eileen Scofield, an immigration attorney with Alston & Bird LLP, has also indicated that “the administration appears to start with the presumption that employers are not telling the truth about their listed employees.”  She said recent audits have been “deeper in scope and more intense” than in the past.

The Immigration Reform and Control Act (IRCA) has been around since 1986. It prohibits employers from hiring individuals, including illegal aliens, who are not legally entitled to work in the United States. To comply with IRCA, employers must verify that individuals are eligible to work by obtaining an Employment Eligibility Verification Form, known as an I-9 form, and inspecting the required supporting documents at the time of hire. Sounds simple enough, right?  As HR professionals know, no form issued by our federal government can be simple or easy. The I-9 form comes complete with a 65-page handbook with detailed instructions to ensure proper completion.

When ICE audits your I-9 forms, they may assess civil financial penalties for mistakes made in completing I-9 forms. These types of mistakes are called paperwork violations as distinct from the more serious violations that result from hiring unauthorized workers.  Fines for paperwork violations range from a minimum of $110 to a maximum of $1,100 for each violation (there can be multiple violations per form).  Monetary penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $16,000 per violation.  In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of the violation, whether the violation involved unauthorized workers, and history of previous violations.

So what should you be doing to make sure you are prepared in case ICE comes for a surprise visit?  In general, be sure to instill thorough record-keeping practices in order to identify and prevent any undocumented workers from being hired by your organization.  Best practices should include the following:

  1. Create an internal training program and procedural documentation. This is especially important if you have multiple individuals responsible for completing I-9 forms, to ensure they are being filled out uniformly.
  1. Educate your team on the broader implications and importance of the I-9 to identify undocumented workers. Oftentimes, employees who are tasked with these duties are less experienced HR people, or general administrative staff, who see the task as a simple record keeping exercise they can harmlessly let slide or get sloppy with when work volumes increase.
  1. Originals, not photocopies, of identification that show identity and employment authorization should be produced for review and verification to ensure they are not fraudulent.
  1. Purge I-9s once they have met the maximum record retention period.  After employment ends, an I-9 must be retained either three years after the date of hire or one year after the date employment ends, whichever is later.  A very common mistake employers make is keeping I-9 documents longer than required.  This needlessly opens up the organization to potential record keeping fines that could have been avoided by destroying I-9s that no longer need to be retained.
  1. Conduct annual in-house I-9 audits. This will allow you to correct all I-9 mistakes, discover any undocumented workers, and determine if any I-9 employment forms are missing.  

Following these best practices, along with accurately completing the I-9 form, should give you some peace mind knowing that you organization will be in compliance with the law and can successfully handle a visit from ICE.

Sources: The Wall Street Journal, September 12, 2013

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