Small Business and Immigration Enforcement
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A Real Life Example:
A business who retained our firm to represent it in an enforcement action was initially assessed a fine by ICE of over $50,000 for “substantive” I-9 form-based violations. Significantly, the employer had not actually employed an undocumented worker, and, indeed, the evidence showed that the employer’s omissions were completely unintentional.
The violations predominately involved the following omissions: The employer failed to (1) fill in and execute the Employer’s Certification, (2) input into Section 2 the hired employee’s first day of employment; (3) input into Section 1 what the purported immigration status of the hired employee actually was, and (4) fill in Section 3 properly with respect to employees whose immigration status was coming up for extension.
Although these violations were unintentional, they infected over 70% of the I-9 forms filled in by the employer, which yielding a fine of $935.00 per improperly completed form, which can clearly add up.
ICE may consider mitigating factors, like businesses size, good faith, history of past violations, etc., but even first time violators are unlikely to get a free pass, repeat violators will get wacked, and, at the extreme, where repeat violations are linked with high incidents of employing undocumented labor, an employer may even confront jail time.
Recommendations:
All U.S. employers should have at their right hand the 2013 “Handbook for Employers: Guidance for Completing Form I-9,” [Form M-274] which can be downloaded for free on the U.S. Citizenship and Immigration Services’ website.
- All employers should train a few people to fill in I-9 forms. This is not a job for college interns, part-time staff, or temporary employees.
- All employers should make sure that they are capable of producing their I-9 files within 3 days of an inspection notice.
- All employers should review their filled in I-9 forms every business quarter to make sure that they have been filled in accurately.
- All employers should have an immigration attorney in their rolodex to contact if questions arise concerning I-9 procedures and/or to assist employers with training their staff and/or conducting internal I-9 audits.
