Immigration and Customs Enforcement (ICE) is increasing its audit and raid activities, cracking down on workers employed in the United States without authorization and the employers who hire them.

ICE investigates whether employers have knowingly employed unauthorized foreign workers and/or failed to maintain acceptable Employment Eligibility Verification forms and documentation (Form I-9) for newly hired employees. These investigations occur in the form of an I-9 paper audit in some situations. In other instances, ICE performs raids on employer locations. These raids are swift, intimidating, and result in large numbers of persons being apprehended and detained. The outcome for employers found to have violated workplace verification requirements can be devastating.

To begin with, employers may lose key employees or a significant number of employees without any notice as employees are placed into removal proceedings and returned to their home countries. Further, if employers are found to have had actual or constructive knowledge that an employee was not authorized to work and continued to employ the worker regardless, they become subject to an order to cease and desist and are forced to pay a civil fine. Fines range from $250 to more than $10,000 per unauthorized foreign worker. The situation worsens for employers if they are found to have engaged in a pattern or practice of knowingly hiring or continuing to employ unauthorized workers. In addition to significant fines, employers convicted of this offense can face up to six months in jail. Employees or other persons who knowingly use fraudulent documents, documents issued to someone else, or false attestations to verify their employment eligibility can also be fined and/or imprisoned for up to five years. Usually, however, they are quickly deported from the United States.

The possible fines don't stop there. Properly completing Form I-9 for each employee is critical to preventing additional liability. Employers who fail to complete, retain, and/or present forms I-9 for inspection as required may also be subject to civil penalties ranging from $100 to $1,100 per form not properly handled. Factors such as the size of the employer's business, the good faith efforts of the employer to comply, the seriousness of the violation, whether or not the individual was an unauthorized foreign worker, and the employer's history of previous violations can contribute to the amount of the penalty.

In this increasingly inhospitable landscape, employers clearly need to be vigilant in verifying workers' identities and legal status to work in the United States. Employers may limit their possible liability and civil penalties by doing the following:

Preventing a problem

  • Choose to be proactive, rather than reactive. Employers may want to "self-audit" to ensure compliance with current I-9 verification requirements for their employees. U.S. Citizenship & Immigration Services has released a revised "Handbook for Employers, Instructions For Completing the Form I-9," which outlines what standards must be met to comply with identity and employment eligibility verification. Remember, a problem is always easier to prevent than to fix.

  • Review current hiring procedures to ensure proper attention is being given to identity and employment eligibility verification. The best way to fix a leaky pipe is to locate its source. If employers fear they may not be in compliance, they should try to determine what procedures are currently in place that have contributed to the problem and how to effectively change them.

  • Use the proper Form I-9 for document verification for new hires. U. S. Citizenship & Immigration Services recently released a new Form I-9, to be used by all employers as of December 26, 2007. Changes to this form include the removal of five documents from the "A" list of acceptable documents to verify identity or employment eligibility and the addition of one document to this list.

  • Contact a labor and employment or immigration professional. Labor and employment or immigration attorneys can assist with decoding the complicated puzzle of I-9 compliance and with making sure your company is protected from possible sanctions.

The balancing act

  • Watch out for "document abuse." An overzealous urge to comply with employment authorization and proper identification requirements may lead to a different kind of violation: document abuse. Document abuse occurs where employers are found to have requested more or different documents than an employee has chosen to present from the designated lists of acceptable documents to prove I-9 compliance. Employers are subject to additional fines for this offense, so it is important to find a balance between obtaining the required documents to prove compliance and requesting too many documents or different documents than those required, rejecting reasonably genuine-looking documents, or specifying certain documents over others.

  • Be careful not to discriminate. Balanced against the need for proper I-9 compliance are the rules prohibiting employment discrimination. In general, employers are not allowed to treat individuals differently because they are (or are not) U.S. citizens or work-authorized individuals, or based on national origin. Individuals are also protected from retaliation by employers for reporting discrimination or asserting their rights under discrimination laws. If employers are found to have violated these laws, they could be forced to take any number of steps to correct the error, including paying civil monetary penalties of up to $10,000 per violation.

If ICE finds that violations have occurred, employers will be notified via a Warning Notice, a Technical or Procedural Failures Letter, or a Notice of Intent to Fine. When faced with these scenarios, or to prevent these problems, employers may wish to contact legal counsel to determine the best solution for their company. Preventing or dealing with workforce compliance issues should be a top priority for all employers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.