Attention Employers: Be prepared before ICE audits your I-9 records

Immigration enforcement and deportation is getting a lot of coverage in the news. However, there is a side to immigration enforcement that affects non-immigrants as well. It’s I-9 employment verification. While people complain that immigrants are “stealing” American jobs, that’s not what employers experience. In reality, it is difficult to find people who want to work, with the skills needed, for the hours and pay offered. As a result, employers find themselves having hired someone – intentionally or not – who is not authorized to work.

Should I just use e-verify?

All employers across the country are required to make reasonable efforts to ensure the people they employ are allowed to work in the US. Many of those people are US citizens, some are lawful permanent residents (foreign nationals who are allowed to live and work in the US indefinitely), some hold work visas, and a percentage of those can be undocumented (“illegal”) immigrants who do not have permission to work here. Some employers, those with federal contracts or in those states where it is mandatory, use the e-verify system. E-verify is a database where employers can run a name and social security number and date of birth to see if the information matches. If it matches, the implication is that the person provided valid information and is authorized to work. Most employers don’t use e-verify for a variety of reasons. Frankly, I don’t recommend it because it’s a database of information entered by humans. Humans make mistakes and those mistakes can hurt you, the employer, if you don’t follow the rules correctly for when employee’s information does not match.

Businesses are required to complete and maintain Form I-9s for each and every employee, past and present. Along with the form, the employer is to keep and maintain copies of certain types of identification. The form itself appears simple on its face; it’s two pages. The list of documents and the combination of documents is a bit more challenging to understand. And, lastly the instructions are 15 pages long and don’t make a lot of sense. This is one reason why it’s easy for any employer to make mistakes or not have modern procedures in place to ensure the forms are filled out correctly, maintained correctly, and, readily available if an audit (inspection) comes.

Most restaurants and construction companies (those without federal contracts) experience high employee turnover. These owners have difficulty finding people who are authorized to work and willing to do the work that’s offered. In turn, those who are not authorized to work but, who are otherwise excellent workers, likely show fake documentation in order to appear employable. What’s a business owner to do?

Can your company afford to pay $100,00s in fines?

Immigration and Customs Enforcement (ICE), under the Department of Homeland Security, is responsible for making sure employers follow the law that requires they only employ those authorized to work. Each mistake on a form can cost an employer from $110 to $1100. There are technical violations and substantive violations. Technical violations are things like name misspelling, using the Spanish version of the form (if you aren’t located in Puerto Rico) and not having the correct number of ID documents, which employers are readily given a chance to correct. But, technical violations can become substantive if those corrections aren’t made, and, the longer a business has existed, the harder it will be to correct those errors. Substantive violations occur when an employer is employing people who provide false documents and not completing the form correctly, including dates. Add up the number of mistakes, multiply it by the fine amount and there’s the penalty; unless more than 50% of a company’s records have mistakes, in which case then fines can be doubled or tripled as a penalty because ICE would consider it a “pattern or practice” of violating the law. In short, companies can easily rack up fines just on their own records in the $100,000s and that can quickly turn into $1,000,000s if ICE finds there’s a “pattern or practice” of hiring unauthorized workers. (See this summary page from ICE’s website for details about fines.)

The Problem with the “Wait and See” Approach

The problem is many employers would rather wait and see if they get audited and deal with it then proactively. However, I don’t recommend that as it’s usually too late to find many of the company’s past employees to make the corrections they need to make to avoid being fined. ICE only gives a company 3 days to turn over all I-9 documentation, and 10 days to correct technical violations. Most firms that do this type of I-9 work, do so defensively, after an audit is done and the fine issues. Invariably, whatever reduction in fine is ultimately negotiated is usually eaten up by legal fees. To the extent the company wants to fight the audit and fines, well, that often results in years of litigation.

Be proactive!

Our solution is proactive. What we do is send someone to look through a random sample (about 10%) of all of the company’s the I-9 records, evaluate them for errors, and calculate an estimated total fine based on the number of employees the company has had over the years. Then, based on that sampling, we’ll give a quote on what it will take to properly correct these files, train staff how to do it right and what to look for on typical fake IDs, and set up procedures on how to maintain a clean, simple system for the future that’ll work no matter how big your company gets.

The benefit of this is that all records from the date of the conclusion of our work to the beginning of the company’s existence will very likely fall under a valid, legal “safe harbor” defense, meaning ICE can’t use those mistakes or include them in a fine calculation against the company owner because the owner took extra steps to do everything possible to make sure those records were in compliance. If the procedures we set up are followed, the company should not face any fine from any future ICE audit/inspection.

But we have an HR person (or company)…

Once a business has grown to have more than 50 employees, the company will likely be using an outsourced human resource (HR) company or have someone in-house as HR. Outsourced HR services can be very beneficial because, when in control of the HR process, the outsourced HR company is typically responsible for any mistakes and should provide legal defense to its client/business for any audit and any fines. The caution here is that outsourced HR companies rarely will review a company’s past I-9 records, so those are still ripe for ICE to review and fine.

In-house HR can be problematic if the HR person doesn’t have the training and experience needed. Usually a small/growing company’s HR person is an owner who doesn’t have the background and knowledge necessary to correctly handle I-9. Certainly there is a time and place for on-the-job training, but I-9 is not the area you want to gamble with.

For businesses that use payroll companies, such as ADP or Paychex, they may be handling I-9 forms and the supporting documentation for you, they may not. It depends on what package they purchase. And, just like outsourced HR service providers, the likelihood that HR will review and correct past employment files is slim to none, which does not eliminate the company’s exposure when an ICE audit occurs.

Why this solution works

Our solution is better. Our services are for smaller to mid-size business with anywhere from 10 to 100 (past and present) employees to date. While it may cost a company $10,000, $15,000 or maybe even $20,000 for us to go through this process to get the files in compliance now, but it’s better than a $100,000, $250,000, or $500,000 fine (not including legal fees) later. We know is this division of ICE brings in more money than any other division due to the fines it issues and, given the political climate, we expect business owners will be experiencing the next crackdown as it relates to immigration. It’s one thing to say immigrants are taking “all” the jobs, but, in order to ensure that doesn’t happen, this type of enforcement will have to increase along with it.

Contact us today to find out more! Or call us at 720.414.2027.

Written by Christine Swenson

Christine Swenson

At Swenson Law Office, we realize your immigration dreams! We all non-US citizens who wish to pursue their dreams in the United States. We are your premier law firm for business, family, and humanitarian immigration and deportation defense. We provide honest, affordable, and compassionate advocacy. Christine Swenson is your experienced immigration attorney conveniently located in Denver, Colorado, and committed to helping those around the world.