From our partner: Jon Velie on I-9 compliance

Have you received a letter from Immigration Customs Enforcement (“ICE”) that your company must produce its I-9 forms for inspection? If so, you are not alone. The Government initiated a new round of immigration investigations on June 14, 2011 targeting 1,000 companies across the country. The companies will be facing government audits of I-9 forms and documents filed by employees indicating legal working status in the United States.“The inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructure and key resources,” ICE spokeswoman Gillian Christensen said in a statement. The names of the companies were not released, however, ICE stated they include large and small businesses in 17 sectors, including agriculture and food, financial services, commercial nuclear reactors, drinking water and water treatment, postal and shipping, health care and transportation. “Ultimately, our focus on businesses related to critical infrastructure and key resources aligns with our priority as an agency to first and foremost minimize threats to national security and public safety,” Christensen said.The Obama administration has made workplace investigations a key part of its efforts to enforce immigration laws, unlike the Bush administration, which relied more on high-profile raids and worker arrests. In all, ICE has initiated more than 2,300 employer audits since the start of the federal fiscal year in October.

It conducted 2,196 audits during the 2010 fiscal year, leading to the criminal arrests of 196 employers and 119 convictions.Questions employers face when audited are:

Are the I-9’s filled out correctly? Typical errors in filling out I-9 forms include:

Leaving fields blank. If there is no answer, such as no middle name or maiden name for a man, fill in with N/A.

Listing more that either the List A documents, ie US passport, permanent residency card or work authorization or List B and C documents, ie Drivers license and Social Security card. An employer should not request all the documents. It is a violation of the employees rights.

Executing the signatures of the employer and employee on different dates. While the documents can be signed up to 3 days apart, the issue is whether the employer viewed the documents when the employee signed the form.

2. Are we maintaining our I-9’s correctly? I-9’s should not be kept in the personnel files of the employee but in separate binders. One binder for current employees and a second binder for employees terminated within three years of their hire date or one year after termination, whichever is longer. Employers should not keep I-9s after the period allocated. Employers should develop a regular purging process. However, it is probably not a good idea to destroy any documents after receiving an ICE inspection notice.

If an employer is being audited, one of the best things it can do, is hire an outside group to audit the forms and related documents immediately. We spent last week auditing forms and documents, training employees, interviewing employees for a company who received one of the thousand letters. We discovered technical errors with virtually all of them. However, we reached out to ICE and informed them we were conducting an audit. We requested some additional time and corrected all the technical errors. We included audit notes and met with the Inspector to identify our issues. It was very well received. Our client would have surely received a lengthy report from ICE indicating non-compliance with virtually all employees. We discovered in our interview process a discrepancy that resulted in termination of an employee. We divulged the issue and solution to ICE at the initiation of the process. The company officials decided to join IMAGE, an initiative that requires an ICE audit and outside audits going forward. But for my client they were being audited anyway and we were performing the outside audit. Additional requirements are joining E-verify among others. Taking these actions are good faith or mitigating steps that may save the Company massive fines, potential criminal prosecution or shutting down operations.

The passage of IMMACT unwillingly deputized US employers to take reasonable steps to determine whether employees are lawfully permitted to work. The consequences can be civil fines ranging from $110 to $1,100 per violation or criminal liability.

The Government has shifted a wholly civil fine philosophy to include criminal liability today. ICE may refer cases of numerous crimes such as knowingly employing an illegal alien, harboring an illegal alien, RICO violations, money laundering and numerous others to a US attorney. The number of crimes have been initiated against US employers have sky rocket in recent years.

ICE is a very well funded agency, and crimes prosecuting illegal aliens is now the top body of crime in the country surpassing drug crimes and terrorism. Hispanically Speaking, reported on June 21, 2011, that the top two crimes in the United States are immigration crimes. One, illegally re-entry will comprise approximately 50% of all crimes prosecuted in the United States in 2011. The current administration will prosecute approximately 37,000 individuals on illegal re-entry. This is a massive upswing from George Bush II’s administration that prosecuted approximately 20,000 in 2008. Bill Clinton’s highest total was in 2000, with approximately 7,500. While, George Bush I only prosecuted approximately 1,000 in both 1991 and 1992.

We are seeing an upswing in deportation as well. In FY 2009 ICE deported more than 135,000 “criminal aliens,”—a 19% increase over FY 2008.

The heightened prosecutions and deportations are indicative of the Government’s hard line policy against illegal immigration and focus on enforcement. The ICE inspection initiative is the largest ever of its kind and clearly shows that the Government will hold US employers responsible if they hire illegal workers. I-9 compliance is a requirement for all employers in the US, it is imperative that you understand whether you are compliant before ICE knocks on your door on gives you a letter with only a few days to comply. But if they do, call an Immigration Attorney with experience in compliance immediately.

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