Workplace Enforcement: Employment Immigration Compliance

May 22, 2018
Dallas Bar Association Headnotes

Under the Immigration and Nationality Act (INA), employers must verify the identity and employment eligibility of all individuals hired in the United States. This verification, required since 1986, is documented via Form I-9, Employment Eligibility Verification.

Recent years have brought record-high federal enforcement efforts consisting of employment eligibility audits of Form I-9 records. In 2017, Immigration and Customs Enforcement (ICE) conducted 1,360 Form I-9 audits. Businesses were ordered to pay $7.8 million in civil fines and $97.6 million in judicial forfeiture, fines and restitution. Employers are also subject to criminal penalties, including prison time, should the government find a pattern or practice of hiring, recruiting or referring (for a fee) unauthorized workers.

Additionally, while federal immigration laws only require employers to complete Form I-9s for employees, a business may be held liable if its independent contractors are unlawfully employing undocumented workers and the company either knew or should have known of its contractor’s hiring practices.

The I-9 audit process is initiated by issuance of a Notice of Inspection (NOI) to a business. Employers must generally produce the Forms I-9 within three days. ICE may also seek supporting employee verification documentation and other company records such as payroll and employee lists and assorted corporate documentation (e.g., articles of incorporation, business licenses, etc.).

ICE agents or auditors then review the Forms I-9 for compliance. Civil fines for substantive and technical violations on the Form I-9 (e.g., not completing the Form I-9 within the required time) range from $220 to $2,191 per form, with repeat offenders receiving penalties at the higher end of the range. The government’s finding of ‘knowing hire’ or ‘continued employment of unauthorized workers’ can result in fines from $548 to $21,916 per violation and/or debarment by ICE. If debarred, an employer will be prevented from participating in future federal contracts and from receiving other government benefits. In determining the penalty, ICE considers the following five factors: (1) size of the business, (2) good faith effort to comply, (3) seriousness of violation, (4) whether the violation involved unauthorized workers, and (5) history of previous violations.

Companies should follow these rules to remain compliant with employment eligibility verification laws:

  • A Form I-9 must be completed for all employees hired after November 6, 1986, whether they are U.S. or foreign nationals. Employees should complete section 1 of Form I-9 on the date of hire, and the employer should complete section 2 no later than three business days after section 1 is completed.
  • The most recent version of Form I-9 should be used (note: employers should regularly check U.S. Citizenship and Immigration Service’s website for the most up-to-date version of the form).
  • Employees must be given the opportunity to present the documents of their choosing for verification from the listing included on the Form I-9. An employee must present either one document from List A, or, one document from each List B and List C. The employer is legally obligated to accept facially valid documents.
  • Employers must re-verify work authorization for workers with temporary work authorization. Documents presented to verify only identity (e.g., driver’s license) and certain documents presented to verify both identity and work authorization (e.g., U.S. passport and Permanent Resident Card) do not need to be re-checked upon expiration. However, documents presented to verify only work authorization for a limited duration (e.g., an Employment Authorization Document (EAD)) should be re-checked at expiration time. During re-verification, employees should again be offered a choice of List A or List B and List C documents to present.
  • Completed Forms I-9 must be retained for the duration worker’s tenure at the company and one year thereafter, or for three years from the date of hire, whichever is later. While Form I-9 records should be purged once the mandatory retention period has run, employers may not do so upon the issuance of a NOI.
  • While subscription to E-Verify (i.e., the government’s web-based electronic employment verification system which compares information against records available to the Social Security Administration and Department of Homeland Security) is optional for most employers, federal contractors and certain subcontractors are required to use E-Verify to confirm employment eligibility of newly hired workers and existing employees working on qualifying federal contracts. Employers must continue completing and maintaining Form I-9 for employees, even if participating in E-Verify.