Ryan Adair, Manager, Immigration Services
The Director of Immigration and Customs Enforcement (ICE) is promising to audit 500 employers every two weeks over the next two years and local companies are beginning to take notice. Federal agencies with wide-ranging enforcement authority are investigating potential employment of illegal aliens, more appropriately known as unauthorized workers. Recent visits by ICE representatives have led to investigations by federal prosecutors, the U.S. Department of Justice, and even the Securities and Exchange Commission.
AUDITS AND INVESTIGATIONS
The director’s announcement on April 20, 2012 has led to a surge in I-9 audits, and expensive fines. Some companies have also faced subpoenas from the SEC, not typically involved with immigration matters, interested in knowing whether publicly-traded companies made forthcoming statements to their shareholders and the public about the risks involved with the employment of illegal aliens.
Many employers do not realize that encouraging someone to remain in the United States in violation of immigration law is a felony. If a large percentage of a workforce turns out not to be eligible to work, the U.S. Attorney’s office may investigate and prosecute the employer in federal district court.
From another angle, the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices has been actively involved in policing employers who violate the anti-discrimination provisions of federal law. Employers who require employees to present specific documentation to prove their eligibility to work in the United States, make employment decisions based on national origin or citizenship status, or retaliate against employees who seek legal redress may face stiff civil penalties.
PROTECT YOUR ORGANIZATION
Employers are in an increasingly difficult climate. Since 2009, the federal government’s focus has been to go after employers of illegal aliens instead of the unauthorized workers themselves. Many employers are choosing to convert to electronic I-9s, to participate in the E-Verify system, or to become (ICE Mutual Agreement between Government and Employers) IMAGE certified as ways to cope.
Any employer is susceptible to an I-9 audit; here are a few rules to follow to reduce the risk of being fined:
1. Get the paperwork right. Every year U.S. employers pay millions of dollars in I-9 fines because they make seemingly small paperwork errors. To avoid mistakes, make sure that all necessary information is recorded completely and filed in the right place. An “issuing authority” recorded on a “document number” line, for example, could cost as much as $1,100 per I-9.
2. Treat all employees the same. Requiring employees to provide more documents than are legally required, selectively reviewing documents, providing higher level scrutiny during review, or targeting employees for additional screening because they look or sound foreign can be costly mistakes for employers. Implementing a policy to address post-hire issues, properly training staff, and developing a consistent I-9 process can protect employers from potential fines.
3. Have no tolerance for unauthorized workers. Employees hired after November 6, 1986, must go through the I-9 employment eligibility verification process. But, ensuring the workforce is comprised only of legally authorized workers does not stop there. If employers receive credible information that an employee may not be work authorized, they have a duty to investigate and take appropriate employment action. Continuing to employ an illegal alien after it is known or should be known that he or she is not eligible to work in the United States could cost employers up to $16,000 per worker in civil fines and could mean significant criminal penalties.
To learn more about the services Mountain States Employers Counsel (MSEC) provides its member organizations to keep them on the right side of the law, please visit the Employment Law section of our website today.