Under the Immigration Reform and Control Act ("IRCA") of 1986, all employers are required to verify the identity and work authorization of all individuals hired after November 6, 1986. In order to comply, employers must review acceptable I-9 identity and employment eligibility documents for each employee and complete Form I-9.
In the past, I-9 enforcement focused on civil fines and penalties. Rather than administrative fines and penalties, Immigration and Customs Enforcement (“ICE”) now aggressively pursues criminal enforcement. Employers who do not comply with IRCA and are found to have unauthorized workers are now often charged with felony criminal violations including knowingly making false statements on Form I-9, conspiracy to knowingly hire illegal aliens, conspiracy to encourage or induce unauthorized aliens to remain in the United States, evasion of federal employment taxes, mail fraud, wire fraud, document fraud, money laundering and alien harboring.
ICE and the Obama Administration have publicly stated that they will continue to aggressively pursue employers who violate immigration regulations. ICE’s budget for worksite enforcement continues to steadily increase. Audits and investigations increase with each new allocation. As a result, it is more important than ever for employers to have a comprehensive I-9 compliance program that addresses I-9 completion, re-verification, training, non-discrimination and audits.
Reviewing the many criminal enforcement actions brought in the last three years, one can identify a number of factors that suggest a company may be at risk:
- I-9 Forms are completed and I-9 documentation is reviewed without attention to detail
- Management is reluctant to question the authenticity of any I-9 documentation for inability to obtain needed workers
- Management allows employees to present new documentation inconsistent with original I-9 documentation without further inquiry
- The company has received Social Security no-match letters and does not question employees regarding discrepancies or otherwise investigate
- Management does not address rumors or complaints that there are unauthorized employees or unauthorized contractors,
- The pool of new hires comes mainly from the existing workforce including their friends and relatives
- Hiring decisions are not subject to review and made by those that may be sympathetic to those desperately seeking employment or willing to hire for personal gain
- The company ignores communications from agencies such as worker’s compensation or other benefit issuing agencies that advise the employer either that the submitted employee information is not valid or that a rightful holder of the social security card is being denied benefits because one of their employees is using the rightful holder’s information.
By establishing and maintaining effective corporate policies and procedures, many of these risk factors can be addressed. It is critical for employers to work with experienced immigration counsel to guide them through this complicated and ever-changing area of law.
At Klasko Immigration Law Partners, LLP, we regularly represent employers from diverse industries to develop effective I-9 policies and compliance programs. We also assist with company initiated I-9 audits to determine possible exposure, correct deficiencies, address I-9 issues, and develop effective training programs. In addition to proactive advice and guidance, we also provide assistance should employers be faced with a government I-9 audit or investigation.