This summer the Immigration and Customs Enforcement announced that its Homeland Security Investigations unit rolled up big numbers of employers found to have been violating the law.
The second phase of a vigorous nationwide operation saw in one week alone – July 16-20 –HSI serving 2,738 Form I-9 Notices of Inspection (NOIs) to employers across the United States.
Earlier this year, HSI served 2,450 notices during the first phase of its campaign launched last fall.
In total, by mid-summer HSI had issued almost 5,200 NOIs since the beginning of October 2017. In addition, ICE said it has made 675 criminal and 984 administrative worksite-related arrests resulting from its stepped-up enforcement program.
“This is not a victimless crime,” declared Derek N. Benner, acting executive associate director for HSI. “Unauthorized workers often use stolen identities of legal U.S. workers, which can significantly impact the identity theft victim’s credit, medical records and other aspects of their everyday life.”
Failure to follow the law can result in substantial criminal and civil penalties for employers. In FY 2017, businesses paid $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines. ICE said it intends to vigorously pursue other employers caught breaking the law.
Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeat offenses. The costs for paperwork violations can range from $224 to $2,236.
Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeat offenses. The costs associated with paperwork violations range from $224 to $2,236.
In July, HSI reminded employers about how it approaches worksite enforcement. This effort includes Form I-9 inspections, civil fines and referrals expected to result in the disbarment and criminal arrest of employers; and administrative arrest of unauthorized workers.
“Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records,” Benner stressed.
Employers throughout the U.S. are expected to comply with the law regardless of their size and location, he said. “Worksite enforcement protects jobs for U.S. citizens and others who are lawfully employed, eliminates unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.”
It is crucial for employers to understand the difference between an I-9 Form audit and an ICE raid on a worksite. A raid is significantly more disruptive.
Unlike an I-9 audit, in the case of a raid there is no three-day warning period to gather documents, and ICE agents won’t wait for your attorney to arrive before conducting a search.
Company representatives should not give any statements to ICE agents without first speaking with legal counsel, advise attorneys Davis Bae and Shanon Stevenson of the Fisher Phillips law firm.
In the case of an I-9 audit, an ICE agent will arrive at your door to serve you with an NOI, or it can be served by certified U.S. mail.
The employer has three days to respond to the NOI, but extensions may be granted with good reason.
“Do not waive your three-day right to produce the I-9s,” says Dawn Lurie, an attorney with the law firm of Seyfarth Shaw. “You will not receive any ‘credit’ for handing the box of I-9s over while the agent is waiting in the lobby.”
NOIs should be taken very seriously, because violations uncovered can prove quite costly, she warns. In 2017, the largest judgment in U.S. history for illegally employing undocumented immigrants was levied against Asplundh Tree Expert Co., totaling $95 million in forfeitures and civil claims.
Making sure you have taken all of the steps necessary to avoid this kind of fate is very complicated, and usually beyond the capabilities of even the most diligent management.
“The potential reputational damage and civil and criminal penalties are too great – and the nuances of the I-9 too detailed – to go at it alone,” attorneys for the law firm of Baker McKenzie warn.
Lurie urges, “If you receive an audit notice, it is critical that you act immediately and secure an experienced compliance expert to guide you through the ICE inspection process — immediately retaining experienced immigration compliance counsel protects your business.”
For a more about how to prepare for and how to react to an audit, please see my article in Material Handling & Logistics magazine.
