Employers do not have it easy. It is hard enough to find the right employee, or to make payroll every week. Now, states as well as the federal government have deemed employers to be the "root cause of all illegal immigration." Immigration authorities have moved from workplace raids and searching for undocumented workers for the purpose of deportation to work-site compliance searching for employers for employing the undocumented.
I-9 Verification and Work-Site Compliance
Auditors evaluate these forms, seeking strict compliance. Indeed, on the federal side, the U.S. Immigration and Customs Enforcement agency guidance to its field auditors emphasizes using the I-9 audit process to advance criminal cases. Given that employers have long been lax on verifying an employee's work eligibility, the government issues thousands of civil and criminal penalties against employers who fail to properly complete, maintain and, where necessary, update I-9 forms. This liability extends to the actual employment of undocumented workers. The burden has shifted from the undocumented employee to the employer's documentation, with the failure to meet the burden resulting in heavy fines and, quite possibly, criminal prosecution.
Form I-9 Compliance from a Civil Perspective
The fines for the seemingly simple I-9 violations can be extremely large. Companies have been fined millions of dollars for everything from mistakes on the Form I-9, even though all employees were properly documented to employing one, two, three or more undocumented individuals. The smallest of errors could create the biggest of problems. Given the present focus on I-9 compliance, employers must ensure that their I-9 practices comply with the law. In order to do so, it is important that employers understand the Form I-9 itself and the attendant regulations.
All U.S. employers are required by law to verify the employment authorization of all workers hired on or after November 6, 1986, for employment in the United States, regardless of the workers' immigration status. Employers who hire or continue to employ individuals knowing they are not authorized to be employed in the United States, or who fail to comply with employment authorization verification requirements, may face civil and, in some cases, criminal penalties.
In order to demonstrate the employer's compliance with the law and the employee's work authorization, the Form I-9, Employment Eligibility Verification, must be completed for each newly hired employee, including U.S. citizens, permanent residents and temporary foreign workers. Through this verification process, employers ensure that employees possess proper authorization to work in the United States and that the employer's hiring practices do not unlawfully discriminate based on immigration status.
The Form I-9 appears to be a simple document, but minor mistakes made in completing, updating and destroying these forms can cause severe and unintended consequences. Domestic employers now are now being audited and sanctioned for simple administrative errors.
What kind of mistakes by employers can lead to the imposition of sanctions? A few examples include: failing to keep an I-9 for the required amount of time; failing to destroy a form in a timely manner; failing to complete necessary portions of the forms; failing to obtain employee signature or attestation date; failing to record acceptable documents relied upon by the employer in hiring the employee; failing to include dates of rehire; failing to re-verify the employee's employment eligibility; and, failing to comply with the appropriate deadlines for form completion.
Civil fines for I-9 compliance violations can be costly. Failing to comply with Form I-9 requirements imposes a minimum $110 for each form and a maximum $1,100 for each form for all offenses. Other offenses attach even more severe civil fines, such as committing or participating in document fraud, which has a fine range of $375 to $1,100 for each worker for a first offense and $3,200 to $6,500 for each worker for a third offense. Civil fines for hiring or continuing to employ unauthorized workers range from $375 to $3,200 for each worker for a first offense and $4,300 to $16,000 for each worker for a third offense.
Criminal Immigration Offenses
In addition to I-9 violations, employment of undocumented workers continues is a high government enforcement priority.
The primary federal criminal immigration statute concerned with the employment or sheltering of undocumented immigrants is found at Section 1324, Title 8 of the United States Code. This Section casts a wide net of potential criminal conduct; the primary area of concern for most employers, however, will be in connection with hiring those later discovered to have entered the United States illegally. It is here that the employer's obligation to comply with the requirements of the I-9 intersects with the specter of criminal prosecution. Not only is it unlawful for an employer to knowingly hire an unauthorized alien, but it is also unlawful for an employer who has hired an alien to continue to employ that person with the knowledge that the employment is unauthorized. The significance of these prohibitions is that an employer who relies upon documents provided by the alien, but chooses not to utilize the E-Verify program (voluntary for most businesses) to ensure that the information provided by the alien on the I-9 is true and correct, might be found to have acted in reckless disregard of its obligation to employ only those aliens authorized to work in the United States. However, if the employer opts not to use E-Verify, but internally monitors its compliance with the law and uses an outside service to audit the accuracy of its I-9 forms, then any contention by the government that the employer knowingly violated the law can be met head-on. Indeed, where the employer relies upon outside counsel to conduct these compliance audits, it would suggest that, not only did the employer not act in knowing violation of the law, but also the employer acted upon the advice of counsel.
The penalties for violating the statute are substantial and could include arrest or debarment from participation in federally funded programs. If an employer is found to have engaged in a "pattern and practice" of violating the statute, then the employer shall be fined not more than $3,000 for each unauthorized alien employed and imprisonment of not more than six months for each unauthorized alien.
Conclusion
The responsibility of an undocumented employee has shifted to the employer. Now, immigration authorities seek to audit employers and collect monetary penalties for simple and unintended paperwork violations. In the more egregious cases, the audits may uncover a "pattern and practice" by an employer that rises to the level of criminal conduct. Employers must everything in their power to ensure that it will be, is and forever remains in compliance with the law. This is a burden that should not be ignored, given the far reaching consequences. To meet these burdens, employers must call upon outside counsel to conduct compliance audits, review identity and employment documents, complete Social Security match audits, and conduct random employee information audits. Baurkot & Baurkot is a leader in Employer Immigration Compliance. You must rely on your counsel, because the future of your company depends on your employees and employment practices.