A Publication of WTVP

While the immigration debate has taken a back seat to healthcare reform, the Obama Administration has indicated its intent to fix our nation’s broken immigration system. The administration’s commitment to comprehensive immigration reform remains evident by the recent enforcement initiatives of the U.S.

Immigration and Customs Enforcement agency (ICE). ICE, the agency that investigates immigration violations and enforces immigration laws in the workplace, recently issued Notices of Inspections to 652 businesses across the country on July 1, 2009. This represents a significant increase in enforcement from fiscal year 2008, when ICE issued slightly more than 500 such notices.

This new initiative is consistent with the president’s strategy of enforcement and focuses on employers that hire undocumented immigrants. The ICE program also follows up on the Department of Homeland Security’s announcement earlier this spring that the president’s enforcement agenda would target criminal prosecution of employers that knowingly hire undocumented workers, as well as issuance of civil fines to deter employers from disfavoring American workers. Recently, the new assistant secretary of ICE publicly stated that ICE plans to increase its focus on auditing I-9 employment eligibility verification forms, and “will use all available tools, including civil fines and debarment, to penalize and deter illegal employment.”

All businesses, large and small, must be aware of their continuing requirement to comply with the obligation to properly complete a Form I-9 to verify the employment eligibility of each new employee. Form I-9 requires all employers, agricultural recruiters and fee-referrers to review and document identity and work authorization documents from new hires, as well as to determine whether these documents reasonably appear to be authentic and related to the new hire. Unlike other immigration laws, the I-9 requirement applies to both foreign nationals and U.S. citizens.

The United States Citizenship and Immigration Service (USCIS) recently revised Form I-9, which clarifies the list of documents acceptable for verifying the new hire’s identity and work authorization. The main difference is that new hires no longer can provide expired documents. Form I-9 contains three sections. The new hire must complete Section 1 at the time of hire. A manager or designated executive must complete Section 2 within three days of the new hire’s start date. The employer also completes Section 3 when reverification becomes necessary.

The current form has been approved for use through August 31, 2012. Employers may use a Form I-9 with the revision date of either August 7, 2009, or February 2, 2009. Use of an earlier version is improper and may result in a civil penalty upon an audit. Employers must retain Form I-9 for at least three years from the date of hire or one year after the last day of employment, whichever is later. Employers do not file Form I-9 with the government.

With the increase in enforcement, it appears that ICE will utilize the audit process instead of worksite raids, which the prior administration frequently used. As part of an audit, ICE agents come onsite to review I-9 forms, payroll records, W-2 reports, employee lists and other employment-related documents. The audit seeks to determine whether the employer has properly checked the new hire’s identity and work authorization, as well as re-verification for employees with temporary authorizations. ICE agents also review the genuineness of the documentation.

Employers must take I-9 requirements seriously. The civil penalties vary depending on the violation. Even minor or technical violations, commonly known as “paperwork violations,” carry fines ranging from $110 to $1,110 for each I-9 issue. ICE also possesses the authority to seek criminal sanctions and imprisonment against employers that knowingly hire, retain or harbor workers who are not authorized for employment. For example, in July, ICE announced that Krispy Kreme agreed to a $40,000 fine for I-9 violations that resulted in the employment of unauthorized workers. In August, ICE announced that two corporate directors of a family-owned business in Washington State pled guilty to felony immigration violations of aiding and abetting the use of a false statement on immigration employment forms.

Although complying with Form I-9 seems straightforward, the failure to comply may result in harsh consequences. The best way to comply and prepare for an ICE audit is to conduct regular internal audits of I-9s, as well as of procedures and practices. Such a review will ensure the lack of paperwork violations, and that documents and procedures remain in compliance with current law. We recommend that such an internal audit be conducted by outside legal counsel with experience in I-9 compliance matters. For more information on employer obligations and the I-9 requirements, USCIS recently prepared a Handbook for Employers that is available online at iBi