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New I-9 Enforcement Targets Employers With Hefty Fines and Criminal Liability A new era of vigorous Form I-9 employment eligibility verification enforcement has begun and EVERY business is at risk. “(ICE is) not just targeting the workers, but also the people who employ them, in the first place. That's a challenge. There are millions of employers in the United States." --John Morton, Department of Homeland Security Assistant Secretary for ICE (Immigration and Customs Enforcement), Director of ICE 2008-• "We want to send the message that your cost of business just went up because you risk your livelihood, your corporate reputation and your personal freedom." • "We found that the fines were not an effective deterrent, employers treated them as part of the cost of doing business… Just a small fine or a slap on the wrist is not a deterrent...we see more robust criminal cases...the prospect of 10 years in prison carries much sharper teeth than just a small fine." --Julie Myers, former Department of Homeland Security Assistant Secretary for ICE (Immigration and Customs Enforcement), Director of ICE 2006-2008 • New ICE’s enforcement guidelines require ICE officers to “obtain indictments, criminal arrests, or search warrants or commitment from a U.S. Attorney’s Office to prosecute target employers before arresting employees for civil immigration violations at a worksite.” (emphasis added). Employers, which include owners, executives, supervisors and mangers could face multiple federal criminal charges including Harboring Illegal Aliens, Inducing Aliens to Enter the United States for Commercial Purposes, Making False Statements on a Form I-9, Aiding or Abetting an employee’s false statement, and Conspiracy to commit immigration law violations.
Liability is assessed for constructive knowledge, not actual knowledge. Constructive knowledge can be based on errors in I-9 Forms whether or not in the employee’s Section 1 or the employer’s Section 2. Civil fines range from $110 to $1,100+ per occurrence—an occurrence is a single I-9 Form. Criminal penalties include imprisonment, asset forfeiture and forfeiture of profits. (Not to mention the lawyer’s fees you pay along the way to defend the company and company executives, officers, managers and supervisors pay to defend themselves.) ICE and other federal agencies have hired hundreds of new investigators to inspect your I-9 records. Below are a few of the many kinds of violations that will cost you…and possibly subject you to imprisonment: • Employee fails to check a box in I-9 Section 1 = $1,100.00 • Company uses an outdated Form I-9 = $1,100.00 • Employee’s name is not printed in I-9 Section 1 = $1,100.00 • Form I-9 is not completed within three days of hire = $ 1,100.00 • Employer fails to sign Form I-9 = $1,100.00 • Employer fails to list the date of hire on Form I-9 = $110.00 • Employer fails to provide its address on Form I-9 = $110.00 • Failure to provide the employee’s maiden name = $110.00 • Employer enters a PO Box instead of the street address = $110.00 On July 1, 2009, ICE took the unprecedented action of delivering Notices of Inspection (NOIs) to 652 businesses nationwide, more than the total number of NOIs issued in all of 2008. The Form I-9 initiative is part of ICE’s new worksite enforcement strategy and is intended to hold employers accountable for their hiring practices. ICE’s new strategy covers the full range of options available to the government; including criminal prosecutions, civil fines and debarment. On November 19, 2009, ICE announced additional NOIs had been issued to another 1,000 employers. In one week in 2009 more business were hit with I-9 fines than in all of 2008. The July I-9 “desktop raids” reviewed more than 85,000 Forms I-9. ICE found 14,000 suspect Forms I-9: Sixteen (16%) percent of the I-9’s ICE examined were suspect; 61 Notices of Intent to Fine (NIFs) have been issued; $2,310,235 in fines were assessed. Five months later an additional 267 cases are still being considered for NIFs. In the first six months since ICE issued its new enforcement strategy (April 30, 2009) it is clear ICE has dramatically increased its I-9 audits, inspections and enforcement:
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45 businesses and 47 individuals have been debarred from government contracting (compare: in all of FY 2008 0 businesses and 1 individual debarred); 142 NIFs issued totaling $15,865,181 (compare: in all of FY 2008 ICE issued 32 NIFs totaling $2.3 million); 45 Final Orders issued for $798,179 (compare: ICE issued 8 Final Orders totaling $196,523 for same period of FY 2008); 1897 cases initiated (compare: 605 cases initiated during same period of FY 2008); 1069 Form I-9 inspections (compare: 503 Form I-9 inspections for all FY 2008).
ICE received substantial enforcement budget increases in FY 2009 and FY 2010. ICE retains the penalties it collects for future operations and funding. ICE coordinates its activities with many other federal agencies and state law enforcement. The Department of Labor shares Wage and Hour inspection audit data with ICE. Recently the department of Labor has hired an additional 250 investigators for wage and hour inspections. Form I-9 compliance is becoming more complicated. Last year alone there were more than 80 changes to the I-9 laws. Faced with federal criminal prosecution and possible imprisonment companies, executives, managers and supervisors are pleading guilty and agreeing to fines and less jail time rather than fighting costly, time consuming and what would ultimately be losing battles in federal criminal court. Businesses are pleading guilty to I-9 violations in record numbers. Employers are paying record fines for I-9 errors and violations. Employers are forfeiting assets and “profits” made from employing workers who are not authorized for employment. Company owners, executives, managers, supervisors and human resources managers have no effective defense for improper I-9 compliance practices. The Department of Justice’s Office of Chief Administrative Hearing’s Officer (OCAHO) adjudicates appeals of NIFs issued to employers by ICE. In a decision issued July 1, 2009, OCAHO ruled that a “good faith” defense was unavailable in a paperwork violation case. The ruling suggests that employers will not be able to avoid significant fines based on cooperation after the fact, good faith or ignorance of the law.
Company owners, executives, managers and supervisors are pleading guilty in record numbers to I-9 errors and violations, and accepting heavy fines and reduced jail time. In reality mistakes happen. Every employer, regardless of size, must regularly review its Forms I-9 compliance practices. It is quite simply negligence not to regularly review your I-9 compliance practices and training. Our Form I-9 services will assist your company to develop I-9 compliance best practices, including preparing written policies and procedures, training human resources or other staff who handle your I-9s, conducting regular internal company I-9 audits, and preparing you to properly respond to an ICE I-9 investigation or ICE worksite enforcement action. Our I-9 services will help ensure that only persons lawfully authorized to work are allowed access into your workplace. As part of our services, we will work with you to make any corrections required on your employees' I-9 Forms.
Gerald Goulder is a North Carolina immigration lawyer with clients throughout the United States and the world. His services assist employers to avoid substantial civil and criminal penalties that may be assessed for I-9 employment eligibility violations. His services include training company personnel on properly completing and retaining Forms I-9, creating company policies for all aspects of proper Form I-9 compliance and conducting internal company I-9 audits of its Forms I-9. His I-9 and worksite enforcement blog and I-9 employment eligibility verification website provide additional information on employer liabilities for Forms I-9. Contact him at 1-866-US VISAS.
This general information only. The information presented should not be construed to be formal legal advice, nor the formation of a lawyer/client relationship.