Immigration is a hot-button issue in today’s news, but one sector of immigration compliance that is rarely ever mentioned is immigration workplace compliance. This omission is puzzling, as the recent years have brought record-high federal immigration enforcement efforts against U.S. companies. While all employers should remain vigilant in their employment verification compliance practices, companies in heavily targeted industries, including the construction industry, should be particularly vigilant in ensuring proper employment immigration compliance.
Under the Immigration and Nationality Act (INA), employers are required to verify the identity and employment eligibility of all individuals hired in the United States after Nov. 6, 1986, and this verification is documented via Form I-9, Employment Eligibility Verification. U.S. Immigration and Customs Enforcement (ICE) has the authority to inspect business’ compliance with immigration regulations by conducting employment eligibility audits of Form I-9 records.
In fiscal year (FY) 2018, ICE opened 6,848 worksite investigations compared to 1,691 in FY 2017; initiated 5,981 I-9 audits in 2018 compared to 1,360 in 2017; and made 779 criminal and 1,525 administrative worksite-related arrests in 2018 compared to 139 and 172 in 2017, respectively, which represents a surge of 300% to 750% across all categories.
Currently, civil fines for substantive and uncorrected technical violations on the Form I-9 (e.g., not completing the Form I-9 within the required time) range from $230 to $2,292 per form, with repeat offenders receiving penalties at the higher end of the range. Employers determined to have knowingly hired or continued to employ an unauthorized worker can be fined from $573 to $22,972 per violation and/or debarred by ICE. If debarred, an employer will be prevented from participating in future federal contracts and from receiving other government benefits. Additionally, employers can also be subject to criminal penalties, including prison time, should the government find that they engaged in a pattern or practice of hiring, recruiting or referring (for a fee) unauthorized workers.
While federal immigration laws only require employers to complete Form I-9’s for employees and not for independent contractors, a business can be liable if its independent contractors are unlawfully employing undocumented workers and the company either knew or should have known of the contractor’s hiring practices.
This rule stems from the 2005 Walmart case in which ICE alleged that Walmart used independent contractors to employ undocumented janitorial workers. Although Walmart claimed the janitors were not employees and it had no control over the contractor’s hiring practices, the federal government insisted Walmart could not “pass the buck.” Walmart settled with ICE by paying approximately $11 million in fines. As such, it is imperative that companies not only ensure employment verification compliance of its own employees, but also keep a careful watch of its contractors’ hiring practices.
All 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 Nov. 6, 1986), whether they are United States 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.
- 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.
- The completed Forms I-9 should be retained by the employer throughout the worker’s tenure at the company and for one year from the employment termination date or three years from the date of hire, whichever comes later. Form I-9 records should be purged once the mandatory retention period is completed, however, employers may not destroy even outdated records upon the initiation of an ICE audit.
- Employers should review contractor agreements to ensure they contain language regarding employee verification compliance and an indemnity provision.
- Federal contractors and certain subcontractors are required to use the government’s E-Verify program (i.e., web-based employment verification system) to confirm employment eligibility of newly hired workers and existing employees working on qualifying federal contracts. Employers must continue completing Form I-9 for employees, even if participating in E-Verify.
The number of workplace audits is expected to continue rising in the coming years. Employers should take a proactive approach to ensure proper immigration compliance practices are in place to protect against possible future liability.
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