I-9 Audits of Employers on the Rise
Posted Aug 28, 2009
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John T. Morton, the new Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security, recently stated that ICE intends to increase its attention to auditing I-9, employment eligibility verification forms. The Wall Street Journal reported that Mr. Morton made this statement during a speech given in southern California on August 17, 2009. As many employers are aware, I-9 forms must be completed and retained by U.S. employers under specific requirements.
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652 Companies Already Receive Notices of Inspection
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Chief Morton noted that ICE has already dramatically increased the number of Form I-9 audit notices issued to U.S. companies. These audits stand at 652 Notices of Inspection (NOIs) for July 2009, alone. Chief Morton said that many more employers will be notified in the coming months that their I-9s and company records will be audited. As part of an I-9 audit, ICE agents review I-9 forms, company payroll records, W-2 reports, and other documents. They seek to determine whether the employer has properly checked the new employee's identity and work authorization, and re-verified authorization, as needed for temporary authorizations. They also ascertain whether any counterfeit documents were used as proof of identity and/or employment authorization.
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Range of Monetary Fines against Employers for I-9 Violations
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As explained in our September 16, 2008 article, Form I-9 Compliance and Working with ICE, fines for I-9 violations range from $110 for one single, minor or technical violation, up to $3,200 per violation for serious first offenses. A third offense can lead to a fine of up to $16,000, per offense. Employers should take compliance with Form I-9 requirements seriously, as there are multiple possible violations per form.
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Additional Penalties against Employers for Criminal Law Violations
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An I-9 audit may lead ICE agents to evidence that criminal law violations have occurred. ICE may accuse employers of knowingly hiring, retaining, or even harboring workers who are not authorized for employment in the U.S. If the use of fraudulent, stolen, or counterfeit documents is found to be prevalent at a U.S. employer, and the company appears to be involved in the falsifications, the company and its management run the risk of charges of conspiracy or, as seen below, of aiding and abetting in the use of false statements on Forms I-9.
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Company Directors Guilty of Felony Immigration Violations
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The first immigration enforcement action by the Obama Administration came to a partial conclusion on August 18, 2009 in Washington state. ICE issued a press release on August 18, 2009 announcing that two corporate directors of a family-owned business in Bellingham, Washington had pled guilty to felony immigration violations. These two directors, siblings, each pled guilty to one federal felony count of aiding and abetting in the use of a false statement on immigration employment forms (also known as Forms I-9).
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Our regular MurthyDotCom and MurthyBulletin readers may recall a discussion of these matters in our July 10, 2009 NewsBrief, ICE to Audit 652 Companies for I-9 Compliance. When entering their pleas of guilty, these two directors admitted to knowledge that workers at their company had submitted false names and social security numbers during their I-9 processes. The directors were the production manager and human resources manager for Yamato Engine Specialists 1990, Ltd. The company itself has been charged with encouraging and inducing illegal aliens to reside in the U.S. and may face stiff fines for its actions.
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Chief Morton's Views on I-9 Violations by Employers
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The ICE press release includes a quote from Assistant Secretary Morton: "ICE will continue to investigate and find employers who flout our laws and hire illegal labor, in order to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce."
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Obama Administration Strategy of Targeting Employers and Management
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The increase in ICE's I-9 audits is a result of the Obama Administration's new strategy of focusing its enforcement efforts on U.S. employers who have violated immigration laws. These employers are viewed by some as the source of demand for undocumented or unauthorized workers. This new strategy was reviewed in our March 1, 2009 NewsBrief, Obama Administration Increases Employer Investigations. It is also interesting to note how the Bellingham, WA raid, described above, shows this shift in strategy. ICE raids under the Bush Administration, resulted in unauthorized workers being detained and, often, removed from the United States. Many ICE raids in previous years did not focus on charges against managers, directors, or owners of the investigated companies, although there was some attention to such individuals. This particular investigation has now concluded with guilty pleas from two members of the company's senior management team.
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Conclusion
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In the current climate of multiple investigations and even criminal prosecution of U.S. employers violating laws in the hiring and retention of foreign workers, it is imperative that each employer understand and comply with the requirements of Form I-9 and other applicable immigration requirements. The Murthy Law Firm will continue to track changes to ICE, DHS's Fraud Detection and National Security (FDNS) office, and the DOL's enforcement focus, so that MurthyDotCom and MurthyBulletin readers can be informed of significant changes, as this  hot-button issue carries alarming consequences for many.