280 Arrests in Allen, Texas, the Latest Lesson in I-9 Compliance

Immigration officials executed the largest workplace raid in more than a decade on a north Texas electronics repair business in early April, resulting in criminal charges against CVE Technology Group and more than 280 employees. The operation in Allen, Texas is the latest headline-grabbing component of immigration enforcement and is yet another signal to businesses to either align with the federal government’s culture of full I-9 compliance or suffer the consequences. In this case, the consequences may include jail time and fines for company officials and deportation for its undocumented workers.

Evolution of US Immigration Policy and the Form I9

A Reminder of Why We Do What We Do

It’s easy to fall into a mode of merely complying with the details of the regulations that shape the slices of the world we inhabit, but a look at how the I-9 culture evolved can remind us that it isn’t just busy work the government imposes upon us. Government is by habit and nature reactive, so the current version of the Employment Eligibility Verification form (I-9) is the latest iteration resulting from a series of events leading up to a form that serves an interest. Understanding its history can be instructive in showing us that collection and maintenance of this data is an expression of modern societal values, regardless of whether they are right or wrong.

A Little History On The I-9 Form

The founding fathers of the United States promoted a policy of open immigration, inviting all to our shores to seek their fortunes. The restrictions in those early days were placed on naturalization—you could come here to work, but you couldn’t vote or hold office unless you became a citizen. This was the general attitude until after the Civil War, and today, an enduring legacy of that policy is the Constitution’s requirement that a president must be born in the U.S.

In 1921, Congress developed the National Origins Formula which used the numbers of foreign-born residents from the 1910 census to establish proportional quotas by country for future immigration. The reference census shifted over the years to support the values of the day, but immigration was essentially frozen during the Depression. The Immigration and Nationality Act of 1952 mainly changed the quotas yet again, but the 1965 amendments to that law abolished the national origins system altogether and focused priorities instead on immigrants with skills our workforce needed.

1986 brought us to the foundation of current policy with the bipartisan passage of the Immigration Reform and Control Act which, for the first time, created penalties for knowingly hiring undocumented workers. The idea was to preserve the American tradition of legal immigration while putting a stop to the illegal variety. The fear of terrorism generated legislation in 1996 that would vastly increase the number of deportations for criminal activity, and then 9/11 happened, perpetrated by 20 foreign terrorists who had entered the country legally.

The attacks altered the thinking in a lot of areas, but Congress has yet to agree on a path to immigration reform. Instead, it created the Department of Homeland Security (DHS) to, in part, oversee immigration through three newly formed agencies: US Customs and Border Protection, Immigration and Customs Enforcement (ICE) and US Citizenship and Immigration Services (USCIS). USCIS is responsible for documenting alien employment authorization (the I-9) and running the E-Verify program, while ICE is responsible for enforcing I-9 compliance. Other divisions within DHS are meant to ensure that these provisions are not applied by businesses or the government in a discriminatory manner.

The introduction and reintroductions of the DREAM Act over time have, however, produced an unofficial consensus that undocumented immigrants who graduate from American high schools and attend college or join the military should be granted a path to citizenship. President Obama bolstered this value with executive orders effectively delaying the deportation of such people.

Immigrant visas are still limited, but immigrants generally become eligible for citizenship after five years of legal residence unless they were admitted through temporary work permit or student visa, neither of which provides a path to citizenship. Illegal immigration peaked at over one million in 2000 but is thought to have declined by half by 2009.

So Where Does that Leave Us?

Employment in the US is considered the magnet that draws illegal immigrants, so the theory is that they will not come if they cannot work. Employer sanctions are therefore designed to make cheaper labor less attractive than compliance. This paradigm forms the basis for the regulatory plan that resulted in the I-9. By making employers liable for hiring undocumented workers, fear of punishment for noncompliance is what prevents these workers from attaining the financial means to remain in this country, and, the government hopes, deters others from entering illegally.

The I-9 form requires the employer to scrutinize the prospective employee’s identity papers. Employers need to check for two things: (1) to verify that this person reasonably appears to be who he or she purports to be and (2) to confirm that he or she can document an immigration or citizenship status that permits eligibility to work in the United States. By requiring that employers do so within three days, the government is ensuring that employers do not let this step fall through the cracks. By requiring a signature, the government is encouraging employers to be thorough in their examination of the presented documents and honest in their assessment under threat of perjury charges. By requiring employers to retain a form containing unexpired documentation for each employee, the government is holding them accountable for ongoing verification that the employee remains eligible to work in the U.S. Employers are, therefore, on the frontlines of executing this policy.

Regardless of an employer’s position on the various issues that make up immigration policy, ICE’s surge in enforcement actions and promise to expand them even further is the reality. The current administration continues to commit unprecedented amounts of resources to enforce existing immigration and employment laws. This means that the government is watching employers closely and won’t hesitate to investigate for any reason. If ever there were a good time to reevaluate I-9 compliance procedures so a business can survive an audit unscathed, it is now.

2019 Primer To the Immigration and I9 Compliance Laws

FY 2018 saw the number of Immigration and Customs Enforcement (ICE) worksite investigations quadruple, so it’s a good time to consider how to be compliant with immigration laws and I-9s in 2019. The federal government is actively seeking companies that employ undocumented workers as a means of rooting out existing illegal immigration and deterring it in the future. The idea is that they will not come if they cannot work, and employers represent the main line of defense. ICE doesn’t need an excuse to check on whether you’re doing your part—agents may knock on your door for any reason.

Every indication is that this surge in enforcement will continue. ICE received over 12% of the Department of Homeland Security’s entire budget for FY 2019, and folded into this budget is funding for 3,312 additional staff to handle the increased caseload. At the same time, E-Verify received $131.9 billion to upgrade systems in preparation for making it mandatory for all businesses across the nation. The pressure isn’t letting up, and all you can do is be prepared when the auditors arrive. It’s a good time to tighten up procedures, and working with a knowledgeable partner to guide you in performing a self-audit is an ideal place to start. A self-audit can identify holes in the I-9 compliance process and give you notice to fill them before it’s too late.

Be Careful Not to Discriminate

The Immigration and Nationality Act of 1965 put an end to government-backed immigration preference for northern and western Europeans. Instead of continuing to set quotas by country, priorities were instead focused on family connections and adding needed skills to the workforce. The relevant provisions in this context, however, relate not only to methods of administering I-9s but also in auditing procedures. The law generally prohibits these types of conduct:

  • Unfair practices in documenting the I-9 and E-Verify;
  • Discrimination in citizenship or immigration status;
  • Discrimination by national origin and
  • Intimidation or retaliation.

When performing a self-audit, an employer may decide to review either all forms or a sample of forms. If the sample option is chosen, the sample must be taken in a neutral and nondiscriminatory manner. Criteria for the sample set must avoid even the perception of discriminatory or retaliatory intent. To accomplish this, do not self-audit based on an employee’s national origin or citizenship status or in retaliation for any reason. Consider the audit’s timing, scope and selective nature as well.

How to Correct I-9 Errors

Section One of the I-9 is always to be filled out by the employee, and an employer may not correct errors found there. Instead, the employee should draw a line through the mistaken information, correct it and initial and date the correction. If someone helps the employee to accomplish this task, that person’s information should appear in the preparer/translator block of the form. If the employee no longer works for the employer, a statement describing the error and why its corrections cannot be made should be attached to the form.

The employer should correct mistakes made in Section Two in the same manner. Mistakes should not be concealed—like with liquid paper—or backdated. If there are too many mistakes to reasonably correct on the original, a new I-9 may be generated as long as the incorrect version is attached and explained.

Miscellaneous Pearls of Self-Audit Wisdom

  • The forms required for eligibility verification change over time, but the important point is which forms were acceptable at the time the I-9 was completed.
  • If a self-audit reveals that a form was never completed or is missing, one should not be backdated. Instead, a form should be immediately completed, and the employer should enter the correct date of employment in Section 2. A statement explaining the error should be attached to the form.
  • If an employer subsequently concludes that the documentation presented by the employee does not appear genuine or accurate, the employer should give the employee the opportunity to provide acceptable substitutes. The simple fact, however, that a photocopy of acceptable documentation is unclear is not sufficient to question it—the employer must have a foundation for skepticism.
  • Simply requiring individual employees to complete new forms (absent a merger or acquisition) when errors are found should be avoided. Without sufficient justification, allegations of discrimination may arise. Exceptions may be made when systemic errors are found in the I-9 process that make deficient forms widespread.
  • It is illegal to knowingly employ an alien who is not authorized to work in the United States, and “knowingly” can be merely inferred in the course of exercising reasonable care. If your audit reveals such an employee, continuing to employ him or her places you outside the bounds of the law.

With each new ICE agent on the payroll, the chance of the agency’s attention falling on you increases. It no longer pays to take a chance with hiring cheaper, undocumented labor or phoning in I-9 procedures. It’s not too late to revise your approach, and a self-audit can give you a chance to solve problems before ICE auditors take an interest. It may not insulate you from all liability, but it will demonstrate good faith.

What To Expect When You’re Expecting…ICE Auditors That Is

Immigration and Customs Enforcement (ICE) has increased worksite investigations, making understanding I-9 audits more relevant than ever for business owners. When a negative audit can cause millions of dollars in fines and penalties as well as prison time, it pays to evaluate procedures and perform a self-audit before ICE does. The agency is particularly concerned with industries that (1) pertain to critical infrastructure or (2) have traditionally been known to exploit undocumented workers. But even an anonymous tip can bring agents to your door. Here’s an overview of what to expect with an ICE investigation.

Understanding I-9 Audits

The Immigration Reform and Control Act of 1986 mandated that employers verify both the identity and work eligibility of each employee thereafter and provided for civil and criminal penalties for violations. Subsequent regulations created the Employment Eligibility Verification Form (I-9) as the means and require employers to maintain I-9s for current employees always, and former employees for a time. The federal government has the right to inspect the forms, and that process begins with serving a Notice of Inspection (NOI), giving the employer a minimum of three business days to produce an I-9 for each employee. The NOI may also request additional documentation such as a payroll copy, Articles of Incorporation or business licenses. ICE audits the forms and documentation, inspecting them for technical or procedural violations.

The most common notifications are these:

  • Notice of Inspection Results—Often called a “compliance letter,” the business is told it has been found to be I-9 compliant.
  • Notice of Suspect Documents—The business is told that an employee’s documentation is insufficient and he or she is therefore unauthorized to work. Both the employer and employee may attempt to establish legitimacy, but the employer is open to criminal and civil penalties for continued employment.
  • Notice of Discrepancies—ICE has been unable to determine work eligibility so additional documentation is required to verify status.
  • Notice of Technical or Procedural Failures—If errors are found, the employer has ten business days to make corrections. If left uncorrected, technical and procedural failures become substantive violations.
  • Warning Notice—A warning is issued when substantive violations are found, but the employer is expected to comply in the future. These do not reach the level of financial penalty.
  • Notice of Intent to Fine—Fines may result for:
    • Substantive violations;
    • Uncorrected technical violations;
    • Knowingly hiring undocumented/ineligible workers, or
    • Continuing to employ undocumented/ineligible workers.

If the case reaches the level of fines, each violation will be detailed, and the employer may either negotiate a settlement or request an administrative hearing within 30 days. If he does nothing, a Final Order is issued.

Determination of Fines

Fines are based on an equation derived from two schedules, typically calculated from the date of inspection:

Knowing Hire/Continuing to Employ Fine Schedule

+

Substantive/Uncorrected Technical Violations Fine Schedule

Each schedule can be enhanced or mitigated by what ICE calls the Enhancement Matrix.

Knowing Hire/Continuing to Employ Fine Schedule—ICE will divide the number of these violations by the total number of employees for the violation percentage. The schedule is allocated by percentage and increases with the number of times the employer has violated this law. The range is currently from $548 to $19,242 but is subject to change with inflation.

Substantive/Uncorrected Technical Violations Fine Schedule—ICE will divide the number of violations by the total number of employees for the violation percentage. Also allocated by percentage, this schedule increases on whether it is the employer’s first, second or third+ offense. The range is currently from $220 to $2,191.

Enhancement Matrix—Each schedule’s fine may be enhanced or mitigated by up to +/- 5% based on the following six factors:

  • Business size;
  • Good faith;
  • Seriousness;
  • Unauthorized aliens;
  • History and
  • Cumulative adjustment.

While this is the typical means of determining fines, violations can also result in:

  • Additional civil or criminal penalties for a pattern of violations;
  • Debarment from government contracts;
  • Back pay for individuals discriminated against, or
  • Being required to hire individuals discriminated against.

Recheck Your I-9 Procedures

ICE’s goal with its surge in investigations is to promote a “culture of compliance” to enhance public safety and national security while protecting lawful companies from unfair competition. The safest way to live in such a culture is to comply fully with it. I-9s are legal documents, and businesses are liable for administering them properly and for keeping up with changing immigration and employment laws. Performing a self-audit can be a useful exercise to reinforce I-9 compliance procedures. I-9 software can be helpful in filling out and tracking the forms and expiration dates, as well as incorporating changes to the law and regulations. Whatever your approach, it’s preferable to have a solid system in place, just in case ICE comes knocking.

ICE Audits Are A Reality

ICE Investigations in 2018

US Immigration and Customs Enforcement (ICE) investigations in 2018 surged by 405% over 2017 to ensure a “culture of compliance.” The agency’s stated goals are to:

  • Prevent the abuse of workers;
  • Deter further illegal immigration;
  • Stop criminal activity, thereby enhancing public safety;
  • Eliminate threats to national security and
  • Protect lawful workers and companies from unfair competitive advantage.

To these ends, ICE and Homeland Security Investigations (HSI) joined forces to produce stunning results from investigations to arrests over the previous year.

FY2017FY2018Increase
Worksite investigations1,6916,848405%
I-9 audits initiated1,3605,981440%
Criminal arrests139779560%
Administrative arrests1721,525887%

As an investigative arm of the Department of Homeland Security (DHS), ICE is specifically targeting two types of industries: (1) those that relate to the nation’s critical infrastructure and (2) those that have traditionally employed and have been known to exploit unauthorized workers. The agency may trigger an Employment Eligibility Verification Form (I-9) audit of any business for any reason, but some of its most visible cases of late started with tips from other DHS agencies through their unrelated investigations and from the tip form on ICE’s website. Tipsters are not required to provide their names or other identifying information so that they may choose to remain anonymous.

With the rising number of audits comes a slowdown in the process, sometimes taking a year to complete and further complicating a difficult and costly headache for HR professionals. Businesses must be aware of the current climate and take every possible step to avoid triggering an I-9 audit and the expensive sanctions that can follow.

ICE Violations

While it can take years for the federal government to turn an audit into a conviction, several high-profile cases and trends have emerged in the last two years that should make business owners reevaluate their I-9 procedures for weaknesses. The consequences of others’ misdeeds are sobering.

  • The owner of a slaughterhouse in Tennessee pleaded guilty to tax and wire fraud and employing illegal aliens. He will pay $1.4 million in restitution before his sentencing which may include prison time and fines. 104 alien employees were arrested on immigration violations.
  • HSI arrested 17 people for a criminal conspiracy to exploit illegal laborers, fraud and money laundering and is investigating violations at agricultural businesses in Nebraska, Minnesota and Nevada.
  • A Texas trailer manufacturer is under criminal investigation for hiring 160 people using identities stolen from US citizens.
  • In FY2018, businesses were ordered to pay over $20.4 million in civil and criminal penalties. One Texas business forfeited over $5.5 million, and an Oklahoma business paid more than $1 million.
  • FY2017 saw the largest financial penalty ever issued in an immigration case. Asplundh Tree Experts of Pennsylvania was ordered to forfeit $80 million and to pay an additional $15 million to settle civil claims for willful blindness to lower level practices of hiring and rehiring illegal aliens.

While the numbers of indictments and convictions remained relatively steady over the last year due to the time it takes to complete the process, the message is clear to HR professionals—make sure I-9 procedures are rock solid. ICE recommends that companies conduct self-audits to identify and correct issues before they become problems.

Why I-9 Compliance is Vital

Last year, US Immigration and Customs Enforcement (ICE) quadrupled the number of worksite investigations, a sobering reminder of why I-9 compliance is vital to every employer. These investigations led to a 440% increase in audits, a 560% increase in criminal arrests and an 887% increase in administrative arrests. In the last two years, businesses have been ordered to pay more than $127.8 million in criminal and civil penalties for violations of related laws. Any business owner who has not shored up his I-9 procedures in light of the surge could be making a very costly mistake.

The Purpose of I-9

The Immigration Reform and Control Act of 1986 requires employers to check the identity of all employees and to verify their authorization to work in the U.S. Businesses document these efforts via the Employment Eligibility Verification Form (I-9), maintained for each employee whether a citizen or not. The employee attests to his work eligibility, and the employer attests to verifying that the produced identification documentation appears to be genuine. The two-page form carries 15 pages of instructions, an indication of the serious legal ramifications to both employer and employee for mistakes and outright lies.

ICE may audit any business at any time, for any reason. While ICE has recently been specifically targeting (1) businesses that relate to critical infrastructure and (2) industries that have historically been known to exploit its workers, the agency may initiate an audit signaled by an unrelated investigation by another arm of the Department of Homeland Security or simply by anonymous tip.

An I-9 Compliance Audit

Through each step of the audit process, the business will receive written notice from ICE. It begins with a Notice of Inspection, informing the business that it has three days to produce its I-9 forms and any requested supporting documentation. If auditors discover violations, the employer then has ten business days to correct them or risk financial penalties. Should ICE determine that the business knowingly hired unauthorized workers, the business may be subject to fines, criminal prosecution and debarment from doing business with the federal government. Settlement may be reached with ICE along the way, but if the business continues to challenge the rulings, the case may proceed through a series of administrative hearings.

Determination of Fines

In January 2018, the Department of Justice increased I-9 fines for inflation. They are calculated from the date of the I-9 inspection and are determined by the violation(s)’ placements on the following ICE tables.

The Knowingly Hire/Continuing to Employ table represents the number of violations for employees fitting this description divided by the number of employees that required an I-9. Each ten-percentage point range increases the fine as does whether the employer is a first-, second- or third- (or more) time violator. The minimum fine for a first-time violator with a score of less than 10% is $548, while the maximum on the table is $19,242.

The Substantive and Uncorrected Technical Violations table divides the number of violations by the number of employees requiring an I-9, and also considers whether this is a first, second or third (or more) offense. The minimum fine is $220 while the maximum is $2,191.

The Enhancement Matrix considers five factors unique to the business. Each of these factors can increase or decrease the table percentages by at most five percent.

  1. Its size;
  2. Whether it acted in good faith;
  3. The seriousness of the offense(s);
  4. Whether unauthorized workers were involved; and
  5. Its history of compliance.

Avoiding a Costly Mess

With all of this, ICE is seeking to ensure a “culture of compliance” that will enhance public safety and national security and protect law-abiding companies from unfair competitive advantage. The best way for businesses to live comfortably within this culture of compliance is to, well, comply. The I-9 is a legal document. Both employer and employee attest to what they write as though it were testimony in a court of law, and it is a crime in itself simply to lie on any part of it. The HR professionals coaching employees through the I-9 should fully grasp this for themselves and make certain that the new employees understand that their signatures subject them to perjury charges for everything they have written. If all parties to the I-9 are acting in informed good faith, they are being good citizens of the culture of compliance.

Companies are responsible for the competence and good faith of their lower level HR professionals. It can be difficult for business owners and upper management to oversee the actions of everyone administering the I-9, especially when the forms are being filled out in other locations. ICE recommends that companies conduct self-audits to identify and correct issues before they become problems, and it offers guidelines to do so on its website. Just remember that the Immigration and Nationality Act prohibits discriminatory or retaliatory audits.

Be Prepared: Mergers And Acquisitions Do Not Absolve I-9 Compliance Issues

Mergers and acquisitions create chaotic periods for affected businesses, but they do not absolve those businesses of their obligation to ensure compliance with immigration and employment laws. In fact, the new entity becomes liable for the sins of the old. It must, therefore, perform its due diligence on Employment Eligibility Verification Form I-9 maintenance for all employees or risk civil and criminal penalties.

The current administration has cracked down on I-9 violations, costing businesses millions of dollars and resulting in thousands of arrests of both employers and employees. With the added scrutiny, it is more important than ever to have one’s I-9 ducks in a row. US Immigration and Customs Enforcement (ICE) recommends that businesses conduct self-audits (https://www.justice.gov/crt/file/798276/download) of their I-9 procedures, as long as they cannot be considered discriminatory or retaliatory. An ICE audit may be initiated for any reason—even an anonymous tip—so every business in the country is susceptible at any time.

The Issue

Be prepared for paperwork. The newly acquired or reorganized business entity may take one of two routes in its approach to the old entity’s I-9s. Whichever I-9 strategy it chooses, a representative will need to sit down with each employee.

  1. The new entity may maintain the old ones previously completed I-9s, thereby accepting liability for any omissions or errors on the forms. If this road is taken, the business should make the time to review each form with each employee to update and re-verify the information to protect itself from possible mistakes created by the previous regime’s I-9 procedures. If this process is not completed by the date of the merger or acquisition, the new entity is legally responsible for any errors in the existing paperwork.
  2. The safer route is to complete a new I-9 for each employee before the date of the merger or acquisition. This requires an offer of employment to and acceptance by each employee who will remain on the payroll after the turnover date. The employee must complete Section 1 of the form by that date, and the employer must complete Section 2 within three business days.

The only exception is an employee hired before November 7, 1986, who has “a reasonable expectation of employment at all times.” These employees are exempt from completing I-9s.

If the paperwork must be done—and it must—it may be a good time to sign on to the federal government’s E-Verify program to make I-9 procedures airtight. Businesses such as federal contractors are required to enroll in E-Verify (https://www.e-verify.gov), and some states mandate participation under certain conditions such as business licensing. For most employers, however, the program is voluntary. E-Verify electronically matches employee documentation presented to attest to identity and work status against data maintained by the Department of Homeland Security and the Social Security Administration. The employer instantaneously receives either confirmation of the documents’ authenticity or notice that a problem may exist. E-Verify’s standards on documentation are higher, requiring a Social Security number and photo identification, but that serves only to further safeguard the business from I-9 problems.

So, we have a newly acquired or reorganized business which may or may not elect to shore up its I-9 situation through E-Verify, and we know that a ton of I-9 paperwork lies on the horizon whichever route we take. We can trod through the paperwork and file it away today, but of course, the job is just beginning. In fact, that was the easy part—compiling shiny new or freshly verified I-9s that, today, are in pristine shape. But tomorrow, employee verification documentation will expire on different days of different years, and state and federal laws and regulations will change when least expected. Wouldn’t it be nice if there were a tool that could take the worry and uncertainty out of all this?

The Solution

In 1998, a group of immigration and employment attorneys recognized the complexity of I-9 maintenance and its ever-evolving landscape and designed software to streamline the process and protect businesses. Lookout Services developed I-9 Intelligence, the first software aimed at simplifying I-9 form completion, the employment verification process and the secure, ongoing management of I-9s and supporting documents.

With an impending merger or acquisition, I-9 Intelligence will protect the new entity from old and future mistakes made by careless people administering the forms and from sloppy procedures. Poorly trained or willfully deceptive people acting in the field without oversight can cost a business. Even the most conscientious employer can make mistakes or simply fail to implement an important legal change. This I-9 software negates all of these frightening and all-too-real scenarios, converting a paperwork nightmare into a Human Resources dream by:

  • Guiding the administering professional through completion;
  • Immediately flagging mistakes or missing data;
  • Providing dashboard alerts when forms are late, missing or in need of updating;
  • Reporting on expiring documents, due dates and form retention timelines;
  • Uploading old I-9 forms and checking them for errors and timeliness;
  • Automatically altering forms to comply with new laws and regulations to ensure seamless compliance and
  • Expanding options for complying with E-Verify by permitting even low-level HR employees to enter and receive data.

Take the guesswork out of I-9 compliance and ensure that your newly merged or acquired business is audit-ready from Day 1.

ICE Investigations Surge 400% in 2018

US Immigration and Customs Enforcement (ICE) investigations in 2018 surged by 405% over 2017 to ensure a “culture of  I9 compliance.” The agency’s stated goals are to:

  • Prevent the abuse of workers;
  • Deter further illegal immigration;
  • Stop criminal activity, thereby enhancing public safety;
  • Eliminate threats to national security and
  • Protect lawful workers and companies from an unfair competitive advantage.

To these ends, ICE and Homeland Security Investigations (HSI) joined forces to produce stunning results from investigations to arrests over the previous year.

FY2017FY2018Increase
Worksite investigations1,6916,848405%
I-9 audits initiated1,3605,981440%
Criminal arrests139779560%
Administrative arrests1721,525887%

As an investigative arm of the Department of Homeland Security (DHS), ICE is specifically targeting two types of industries: (1) those that relate to the nation’s critical infrastructure and (2) those that have traditionally employed and have been known to exploit unauthorized workers. The agency may trigger an Employment Eligibility Verification Form (I-9) audit of any business for any reason, but some of its most visible cases of late started with tips from other DHS agencies through their unrelated investigations and from the tip form on ICE’s website. Tipsters are not required to provide their names or other identifying information so that they may choose to remain anonymous.

With the rising number of audits comes a slowdown in the process, sometimes taking a year to complete and further complicating a difficult and costly headache for HR professionals. Businesses must be aware of the current climate and take every possible step to avoid triggering an I-9 audit and the expensive sanctions that can follow.

Violations

While it can take years for the federal government to turn an audit into a conviction, several high-profile cases and trends have emerged in the last two years that should make business owners reevaluate their I-9 procedures for weaknesses. The consequences of others’ misdeeds are sobering.

  • The owner of a slaughterhouse in Tennessee pleaded guilty to tax and wire fraud and employing illegal aliens. He will pay $1.4 million in restitution before his sentencing which may include prison time and fines. 104 alien employees were arrested on immigration violations.
  • HSI arrested 17 people for a criminal conspiracy to exploit illegal laborers, fraud and money laundering and is investigating violations at agricultural businesses in Nebraska, Minnesota and Nevada.
  • A Texas trailer manufacturer is under criminal investigation for hiring 160 people using identities stolen from US citizens.
  • In FY2018, businesses were ordered to pay over $20.4 million in civil and criminal penalties. One Texas business forfeited over $5.5 million, and an Oklahoma business paid more than $1 million.
  • FY2017 saw the largest financial penalty ever issued in an immigration case. Asplundh Tree Experts of Pennsylvania was ordered to forfeit $80 million and to pay an additional $15 million to settle civil claims for willful blindness to lower level practices of hiring and rehiring illegal aliens.

While the numbers of indictments and convictions remained relatively steady over the last year due to the time it takes to complete the process, the message is clear to HR professionals—make sure I-9 procedures are rock solid. ICE recommends that companies conduct self-audits to identify and correct issues before they become problems.

How Border Wall Shutdown has Shutdown One “Electronic Border Wall”

On December 22, 2018,  the federal government officially shut down following contention over the proposed border wall. However, while the shutdown may be rooted in immigration concerns, the shutdown’s impact on immigration services will be relatively limited. This is because most of the organizations involved in U.S. immigration are deemed “essential agencies,” so they will continue operating as normally as they can. Further, funding has already been appropriated for many other agencies relevant to immigration, so as long as the money is there, these organizations will also remain open.

Still, when the government shuts down, confusion ensues. For employers and their workers, here is what you need to know:

Are E-verify and the I-9 Form affected by the shutdown? 

Almost all federal agencies responsible for immigration will remain fully operational during the shutdown. So, how is immigration being impacted by the government shutdown?

The brunt of the impact will fall on E-Verify, which is an essential tool for employers that need to verify work authorization. The I-9 Form process, though, is still required for authorizing new hires.  Here is what the government shutdown means for the process:

  1. Form I-9 – Form I-9 remains mandatory under federal law, and new hires should still be required to fill out the form with their employer. It is important to note that even while the government shutdown is in effect, employers are still required to verify their employees.During a government shutdown, the I-9 Form process remains unchanged. That includes deadlines, so employers must still fill out the form within three days of hiring a new employee. New hires must also provide the proper identifying and work authorizing documents, adhering to the same timeline. Should the company’s I-9 Forms be audited at a later date, the auditing agency will expect any I-9 Forms filled out during a shutdown to be compliant in every way. That includes how the form is retained, so companies should not alter their I-9 Form processes, assuming they are already in compliance.
  2. E-Verify – The Department of Homeland Security’s E-Verify website will be unavailable during the government shutdown. This means that nearly all of the shutdown’s impact on immigration will be centered on the program.Because it will be taken offline until the shutdown is resolved, E-Verify cannot be used to verify an employee’s work authorization, even in states where it is a required step. Further, it is currently impossible to enroll in E-Verify or terminate an account, to create a case in E-Verify, to take any action on an ongoing case, to add or manage any user credentials, to run any reports or to resolve Tentative Non-confirmations, or TNCs. In other words, employers won’t be able to access any part of the website.As long as the government remains in shutdown mode, employers will be given leniency regarding E-Verify use. Specifically, the three-day deadline has been suspended, so employers are not required to begin an E-Verify case within three days of hiring an employee. Also, if there are any ongoing TNCs, they do not have to be resolved until the government is no longer shutdown. Employers have been cautioned not to take any action against an employee who has received a TNC, or an employee whose case has been stalled as a result of the shutdown. These cases should be addressed further once the shutdown has ended.

What is not affected by the government shutdown?

Multiple federal agencies are involved with immigration, and most of them will continue functioning as normal. Those agencies include:

  • Customs and Border Protection (CBP) – As CBP is one of the aforementioned essential agencies, it will continue operating through the government shutdown. That means CBP will still provide inspections at the Mexican and Canadian borders and will also enforce U.S. laws at the borders.
  • Immigration and Customs Enforcement (ICE) –ICE is another essential agency and will also remain open during the shutdown. As such, employers should not expect ICE-run audits and inspections to cease or slow down during this time.
  • Student and Exchange Visitor Information System (SEVIS) – Another essential agency, SEVIS will also operate during the shutdown. It is essential that universities remain compliant with any regulations related to SEVIS, as it is considered important for national security.
  • United States Citizenship and Immigration Services (USCIS) –USCIS is a critical organization for ensuring the smooth flow of people in and out of the country. Fortunately, USCIS is funded by application and petition fees, so it will remain funded through the shutdown.
  • Department of State (DOS) –DOS is not an essential agency and funding has not been set aside for the organization. However, DOS expects U.S. embassies and consulates to process visa applications as normal, as long as visa filing fee reserves remain. DOS has also confirmed that passport services will still function normally, unless those services are provided in a federal building that has been shut down.
  • Passport Offices – The Department of State says that the only passport offices affected by the government shutdown are those located within a federal building that has been closed due to the shutdown.

 

  • Department of Labor (DOL) –Funding has already been appropriated for the DOL through the 2019 fiscal year. As such, it is unaffected by the shutdown, which means current wage determinations, PERM processing and labor certifications will not be halted.

Government shutdowns bring a lot of uncertainty to the private sector, but employers and their employees won’t have to change much as a result. While E-Verify is down, the I-9 Form process remains unaffected, and the agencies responsible for immigration law enforcement are still up and running. Employers, then, should consider it business as usual when it comes to authorizing workers.

 

Purging Your Records

Electronic Form I-9 systems have brought efficiency and ease of oversight to the processing, storing, and purging of Forms I-9 like no paper system could ever hope to do. With paper Form I-9 records they were typically just stored away, rarely revisited, and likely never purged. Electronic I-9’s have made it incredibly simple to maintain proper long term storage of these files.

The reports available to the Program Administrator, when used effectively can help your organization stay ahead of any compliance issues, including retention and purging.

Did you know each time you terminate an I-9, Lookout automatically calculates a retention date for that I-9. You don’t have to determine if you need to keep it for 1 year or 3 years. That is all done for you. But why bother? You might be thinking “better to have it and not need it, than need it and not have it.”

Well, that old adage doesn’t always hold true. If those records are lost or stolen, your organization could potentially be liable for any resulting identity theft. And in an I-9 audit you can be fined for mistakes and errors even on forms that you should have purged.

It is very important that your Program Administrator understand and be trained on all areas of Form I-9 management, including retention and purging.

If you require instruction or assistance on how to perform these tasks in the Lookout system, please contact Customer Support at 713-668-6200 x2. We look forward to the opportunity to assist you in your I-9 processing.