I-9 Documentation Continues to be at the Center of ICE Scrutiny

30 September 2013 Labor & Employment Law Perspectives Blog

Immigration Customs and Enforcement (“ICE”), has recently launched a “silent raid” targeting over 1,000 U.S. employers suspected of hiring undocumented immigrants by notifying them that they must submit to a full audit of their I-9 compliance documentation. The so-called “silent raids” are the largest since July 2009, and highlight the government’s continued trend of sanctioning employers that do not adhere to the strict Form I-9 record keeping requirements as per current federal regulations, or otherwise employ illegal immigrants. Over the last four years, ICE has conducted approximately 10,000 employer audits, and imposed more than $100 million in administrative and criminal fines to U.S. employers nationwide.

The new round of employment audits is directed at the food service industry – including restaurants, food processors, and those involved in agriculture – as well as high-tech manufacturing companies and related industries that together employ tens of thousands of U.S. workers. The latest audits were sent out just before the close of the government’s fiscal year, which ends on September 30, 2013.

Typically, ICE sends a notice of an audit to a business demanding its employees’ employment authorization documentation, including I-9 employee eligibility forms, worker rosters and payroll sheets. After examining the documents, ICE issues a “notice of suspect documents” to the company, listing workers with mismatched names and Social Security numbers, or those that they deem to have provided false identification records. At that point, the employer must inform the workers identified that ICE has challenged their right to work, and that they must be terminated immediately unless they can provide legitimate employment documentation.

The recent round of audits, coupled with two recent settlements announced by the United States Justice Department’s Office of Special Counsel (“OSC”), underscore the importance of having a clear understanding of what specifically is required of employers regarding I-9 compliance and the fine line employers must walk when requesting information from employees regarding their authorization to work. In one such matter, the OSC alleged that the employer violated the Immigration and Control Act of 1986 (“IRCA”) when it required a prospective employee to produce a permanent residence or “green card,” and refused to accept a valid employment authorization document (“EAD”), which in and of itself satisfies the Form I-9 requirements under IRCA. By refusing to accept the candidate’s EAD and insisting on a green card, the employer allegedly violated IRCA’s anti-discrimination requirements. The employer in that matter agreed to a settlement including fines and back pay. The OSC brought similar claims against a major department store chain alleging that the employer refused to accept documents presented by new hires that appeared on their face to be genuine, and instead asked prospective employees for additional documents other than those allowed by IRCA. That employer also entered into a settlement requiring payment of civil penalties and establishment of a fund to compensate damaged employees.

These OSC settlements emphasize the dangers that U.S. employers face if they overstep their bounds when attempting to comply with current Form I-9 employment eligibility verification regulations. As civil and criminal penalties may arise for either too much or too little documentation, employers must walk a fine line in complying with IRCA’s strict worksite documentation regulations. Furthermore, even if no undocumented workers are discovered by ICE, as we recently noted, employers can still be fined for even clerical errors, such as an inaccurate employee start dates. Employer sanctions for inaccuracies can range from $110 to $1,110 per error, depending on the violation made, which can quickly add up to a hefty amount owed for a business employing 10+ U.S. workers.

Given the attention the Government is dedicating to Form I-9 requirements, now might be a good time to audit your organization’s documentation practices and seek guidance on any areas of uncertainty.

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