On April 20, 2006 The Department of Homeland Security announced its Comprehensive Immigration Enforcement Strategy for the Nation’s Interior. The second goal of this initiative is to build strong worksite enforcement and compliance programs to deter illegal employment in the United States.
Immigration and Customs Enforcement (ICE) has undergone a strategic shift from imposing administrative sanctions and fines to seeking out and punishing knowing and reckless employers of illegal aliens by bringing criminal charges against the employers and the administrators completing employment eligibility forms.
In the past employers had little fear of being arrested and the administrative fines were nominal and considered a cost of doing business. In 2003 there were only 124 fines issued. Last year, in a single ICE worksite enforcement investigation, a settlement and forfeiture of $15 million was negotiated. Just last week an investigation which began over a year ago resulted in the arrest of 1,187 people on administrative immigration charges, and seven criminal complaints were brought against managers or former managers for alleged criminal violations in connection with the hiring of illegal, undocumented aliens. The charges in the criminal complaints allege harboring aliens for illegal advantage, and, in two instances, document fraud. The Administration’s Fiscal Year 2007 budget requests an additional 171 agents and $41.7 million in new funds to enhance worksite enforcement efforts.
You may ask yourself, what does that have to do with my business? I don’t hire illegal aliens. Most employers do not knowingly hire illegal aliens and will be in compliance with the Immigration Reform and Control Act of 1986 (IRCA) and don’t need to worry about criminal charges like money laundering or harboring an alien for illegal advantage. However, if you are in the hospitality, construction, landscaping or agriculture business you may be targeted for a worksite enforcement inspection. Charges of recklessness have been brought for employers who are careless or lax in their employment practices. Missing or incomplete I-9 forms can result in fines between $600 and $800 per form and missing forms can result in an additional fine of about $1500 per form(can be as high as $10,000) for knowingly employing an ineligible person. (ICE assumes that persons without forms are illegal.)
All employers should perform regular audits of their I-9 forms and regularly review the practices of those responsible for hiring and completing paperwork for new employees. Employers are not expected to be document experts, but an individual presenting a social security card with the number 000-00-0000 should be suspect. As an employer, you may not use photocopies of identity or employment eligibility documents, with the exception of a certified photocopy of a birth certificate. You can make a copy of the documentation provided and retain with the completed I-9. This can be helpful later as you complete your audit, in the event you completed information incorrectly on the I-9. Be aware, if you retain copies for one individual, you must do it for all employees.
You are not permitted to tell an employee which documents to provide for employment eligibility verification. A good practice is to include a copy of the “List of Acceptable Documents” with your offer letter. Instruct the employee that they must provide either one document from List A or one document from List B PLUS one document from List C on the first day of employment. An employee must prove eligibility for work within three business days of hire or risk termination. If an employee has lost one of their documents, you can accept a receipt for a replacement document, (lost, stolen or destroyed), within the first three business days. An employee then has up to 90 days from the first date of employment to produce the actual documents. Set up a tickler file for 30, 60 and 90 day follow-ups with the employee.
Make sure that you have completed the Employer Review and Verification section of the I-9 form within three days of the first day of employment. Your signature and date must be within three days of the employees start date or you could be subject to an administrative fine. Fines vary from $100 to $1,100 per paperwork violation. It is best if you complete all hiring paperwork on the same day as the employee. It will save time, money and questions later.
After completing I-9 forms you must store them in a location which will allow you to produce them within three days of an official request for production of the documents for inspection. If you have a significant number of employees or multiple sites you may want to consider storing I-9s in a central location alphabetically. You are not required to do this and you may, if you choose to, store them in the employee’s personnel file. This makes it more difficult to conduct an internal self-audit of I-9s or pull documents quickly, but is permissible.
I-9s must be retained for at least three years from the date of hire or one year after termination, whichever is later. You may discard outdated I-9 forms. If there is a question, refer to an expert such as an employment law or Immigration attorney. If you re-hire an employee within three years of the date the form was first completed, you can complete Block B and the signature block on Section 3 of the original form.
If you have decided to conduct an audit of your company’s I-9 forms here are a few suggestions:
1. Generate a list of all employees hired since November 6, 1986. The list should contain the employees name, social security number, date of hire, and termination date. Identify the former employees whose termination date is outside the required retention period. Those I-9 forms can be discarded. Have a separate person check your math before discarding any I-9s.
2. Verify that you have an I-9 for every person on your list.
3. On each I-9 check for missing signatures, unchecked status boxes, information recorded in the wrong space, missing or incorrect dates.
4. Make the necessary corrections or require the employee to produce the missing information.
Conducting an audit of your I-9 files and making required corrections will go along way towards demonstrating good faith compliance with the IRCA and may reduce the risk of severe penalties.