By Scott Railton, immigration attorney
July 1 was a big day in the world of immigration work-site enforcement. U.S. Immigration and Customs Enforcement (ICE) issued Notices of I-9 Inspections on 652 businesses nationwide. On this one day, ICE issued more audit notices than in the entire previous year. Judging by this first volley, the I-9 audit appears to be ICE’s new favorite enforcement tool.
This is a change. For years and years, the government did nothing to enforce immigration laws. Then, three or four years ago, ICE began conducting high-profile raids, using its limited financial resources to target egregious employers, and thereafter publicizing its efforts in hopes of sending a message to the rest of the business world. The message was sent, but not so well received. Raids and immigration enforcement became increasingly political, with ICE trying to establish that it could be effective in its mission, and various interest groups sounding out in opposition.
The Immigration Reform and Control Act of 1986 requires that employers complete and retain I-9 forms for each individual they hire. The completed I-9 form establishes that an employer has verified the work eligibility of a new employee through the review of select work authorization documents, such as proof of U.S. citizenship, lawful permanent residence, or nonimmigrant work authorization. These I-9 forms will be the principal subject of the audit, if a Notice of Inspection is issued.
Notices of Inspection are not issued randomly—if a business receives such a letter, it is already suspect. A Notice of Inspection merits a call to an attorney, as it can be a serious matter. A business is given at least three days to surrender its I-9s once the notice is served, which isn’t a lot of time if the I-9s are a mess. The business is also given a list of documents it may or may not choose to produce. The inspection may occur on or off-site. Documents provided to the agency are frequently the basis for a subsequent search warrant. If a business is non-compliant, ICE can levy substantial fines, and may pursue criminal prosecution of owners and managers. For example, Krispy Kreme just paid a mitigated fine of $40,000 following an I-9 audit this past month.
Many companies choose to establish a corporate compliance program specific to their immigration hiring practices. Such programs are valuable, as they establish a good faith effort to comply with immigration hiring laws before the audit comes by providing systematic attention to the issue in the first place.
So what’s a business to do? Start by reviewing how the I-9 process is actually handled in your company. Who manages this responsibility? It is usually a good idea to have one point person oversee this function. Are they up to date on the latest M-274 Handbook for Employers and its contents, available at www.uscis.gov? The newest version of the handbook was just released in April, and the update has all sorts of new content on fraudulent documents inspections, discriminatory practices, and the E-Verify program. Print it. Also, check to be sure that your business is using the latest I-9 form, recently updated and also available at www.uscis.gov.
Thereafter, conduct a self-audit of your I-9s. Review existing I-9 forms for completeness. Incomplete forms can lead to paperwork fines. Review your policy on keeping copies of identity documents—is your practice consistent? And are you updating forms to reflect work authorization renewals? Determine whether you have received Social Security No-Match letters. If so, you may be ripe for an ICE audit, as this is one lead ICE uses. In particular, make sure there is not a pattern or practice of hiring unauthorized workers, as this can lead to more serious actions by ICE.
Many companies choose to establish a corporate compliance program specific to their immigration hiring practices. Such programs are valuable, as they establish a good faith effort to comply with immigration hiring laws before the audit comes by providing systematic attention to the issue in the first place. Also, a good compliance program will help avoid later allegations of unfair and discriminatory employment practices. The Office of Special Counsel in the Department of Justice is dedicated to investigating just such complaints, and so employers should be mindful of not acting discriminatorily in their good-faith efforts to comply with I-9 requirements.
It is no secret that there is a substantial unlawful workforce in the United States, and yes, in Bellingham too. The national population is typically estimated at 12 million people. The Obama Administration has said that it would like to bring this workforce out of the shadows and under the color of law. This, however, will be a rocky road politically, and nobody knows when or if this will happen. In the meantime, the Obama Administration has stated it will continue to escalate its immigration enforcement efforts. Sounds like a good reason to take a look at your I-9 program.
Scott Railton is an immigration attorney at Chang & Boos in Fairhaven. He may be reached at firstname.lastname@example.org.