Employers across the nation are required to take certain actions regarding verifying the immigration status of employees. Since at least 1986, when immigration laws were reformed, Congress has worked to preserve pathways to legal immigration while simultaneously closing off common methods of illegal entry. In the 1986 immigration Reform & Control Act, sanctions and penalties were codified for employers who fail to verify the immigration status of employees. Additional changes to the I-9 employer verification requirement were made by the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility.
Companies that fail to satisfy these I-9 obligations can face enormous fines by Immigration and Customs Enforcement (ICE). This is the scenario the largest employer in Prescott, Washington faced after ICE first alleged immigration issues in 2012.
Agricultural Employer Settles for $2.25 million I-9 Fine
Broetje Orchards is a family-run business that grown fruits, mostly apples and cherries, for sale across the country. The orchard was first identified by ICE as potentially having undocumented workers back in 2012 during an audit. During that audit ICE claims that it identified up to 1,700 workers who were working for the orchard and being in the United States illegally. Legal wrangling and lobbying delayed enforcement action for a number of years, however ICE again audited the company in the summer of 2014 where the audit uncovered 950 workers allegedly working without authorization. It appears that Broetje recognized that it could no longer delay enforcement action by ICE.
In light of this realization, the company negotiated a civil settlement with ICE. Under terms of the settlement the company does not admit fault or criminal wrongdoing, but it has agreed to pay more than $2 million in civil penalties to correct Form I-9 issues identified during the Employment Eligibility Verification audit. According to ICE, the settlement must be paid in a lump sum within 30 days of invoicing the company.
Immigration Reform & Control Act Requires Employers to Verify Work Authorization of Employees
Employers must engage in the I-9 verification process for all employees. The typical I-9 employer verification process consists of the following:
- The employer offers a job and the employee accepts.
- The employee must complete Section 1 of the I-9 before he or she works the first day for pay.
- The employee must provide supporting documents verifying immigration status. Valid documents include a U.S. passport, permanent resident card, foreign passport endorsed with a I-551 stamp, Employment authorization card containing a photograph, ID card issued by a federal, state, or local governmental agency, birth certificate.
- The employer then completes Section 2 and submits it before the worker beings his or her third day of work for pay.
- If the employee’s work authorization expires or is rendered invalid, Section 3 of the I-9 must be completed.
Aside from verifying work authorization, employers are also required to retain forms for a period of time. For former employees, forms must be retained for the greater of three years since their hire date or for a single year after employment has terminated.
ICE Notifies Employers of I-9 Inspection Results & Fines
If your business is selected for an I-9 audit, you are likely concerned and anxious of the results. ICE provides notification of its determinations once the inspection is completed. Commonly issued notices to employers include:
- Notice of Inspection Results – While this sounds like a neutral communication, this is the language utilized by ICE to let an employer know that they are in compliance.
- Notice of Discrepancies – If ICE is unable to verify one or more employees eligibility to work in the United States, it will send this notice. The employer should provide the employee with a copy of the notice and provide the employee an opportunity to proffer their work authorization or additional documentation to establish such.
- Notice of Suspect Documents – This communication informs an employer that ICE has determined an employee is not permitted to work in the United States. The letter typically informs the employer of the potential civil and criminal fines they may be subject to if they continue to employ the individual.
- Notice of technical or Procedural Failures – ICE permits employers 10 days to correct procedural errors identified during and audit. After 10 days have elapsed, the violations become substantive in nature.
- Notice of Intent to Fine (NIF) – If ICE identifies problems during the I-9 audit this notice may be issued for substantive violations and uncorrected technical violations. Furthermore, employers suspected of knowingly hiring and continuing to employ unauthorized workers will receive this notice.
For identified issues concerning an employer who knowingly hires or continues to employ unauthorized workers, penalties are based on whether this is a first-time or repeat violation and the percentage of workers in unauthorized status. For instance a first-time violator with 10 percent to 19 percent knowing hire and continuing to employ violations could face a penalty of $845. For a third time offender with the same percentage of violations, the fine is assessed at $6,250. Penalties can be mitigated or enhanced based on an array of factors including the size of the business, the seriousness of the offense, company history, presence of unauthorized workers, and good-faith dealing during the process.
If your business is facing serious concerns due to I-9 compliance issues, contact the experienced immigration and visa lawyers of Colombo & Hurd. To schedule a legal consultation to discuss your company’s I-9 issues, call 800-659-7142 or contact us online.