Small Business and Immigration Enforcement

Statistics don’t lie, small business owners need to be aware of this real life example and recommendations

Since the enactment of the Immigration Reform and Control Act of 1986, all U.S. employers have been required to fill in I-9 forms to confirm that a hired employee has an immigration status that authorizes him to work in the U.S.. I-9 compliance has not generally been a pressing priority among U.S. employers, but the stakes have become quite high.

The truth of the matter is that the immigration authorities have become very serious about I-9 enforcement. Levels of I-9 enforcement have gone way up since 2007. Fines are more frequently assessed, and an increasing number of egregious violators have become subject to criminal prosecution.

The Statistics Don’t Lie

The statistics are telling: Since January 2009, Immigration and Customs Enforcement (“ICE”), one of the sub-agencies of the DHS, charged with enforcing the nation’s immigration laws, is said to have audited nearly 9,000 employers, debarred 917 companies and individuals, and imposed more than $101 million in financial sanctions. By the end of 2013, ICE conducted almost 3,100 inspections of businesses nationwide.

In 2012, ICE assessed nearly $13 million in fines as the result of I-9 violations. In 2013, the largest ever fine for I-9 compliance violations was assessed in the amount of $34 million. To put all this in perspective, in 2007, ICE conducted only about 250 workplace compliance inspections, so the volume and frequency of inspections for I-9 violations has gone way up.

Small Businesses are not Immune to ICE Enforcement

Nor is it the case that only large employers are finding themselves on the other end of I-9 inspections. According to one source, in the second half of 2009, 50% of inspections were conducted in connection with businesses that employed under 25 workers. The volume of small businesses being inspected continues to grow.

What is a “Substantive” I-9 Violation?

One of the big myths surrounding I-9 enforcement is that the only employers who can get into trouble are those who knowingly employ undocumented aliens. But, this is wrong. ICE has assessed fines for unintentional paperwork violations. Indeed, many acts of omission that seem minor may actually be considered by ICE to be “substantive” violations that can bring with them, sometimes, very hefty fines.

Next page: A Real Life Example and Recommendations