New Jersey Employers Should Be Prepared for Increased ICE Workplace Investigations

During the years of the Obama Administration, federal enforcement of immigration law was, essentially, non-existent. This will no longer be true as recently announced by Thomas Homan, Acting Director, U.S. Immigration and Customs Enforcement (“ICE”). ICE plans to increase worksite inspections by “four to five” times the current levels. Because minor oversights can lead to costly fines, all employers would be well advised to have their documents in order should ICE come knocking.

In response to being asked about routine immigration inspections, Homan warned of stepped up enforcement: “We’re taking worksite enforcement very hard this year.” “We’ve already increased the number of inspections and worksite operations—you’re going to see that significantly increase this next fiscal year.”  

Form I-9 Audits

Nearly all ICE workplace investigations involve auditing the employer’s Form I-9s. As employers should be aware, all employees (citizens and noncitizens) working in the United States must complete Form I-9, which is used to verify their identity and authorization to work in the United States. Form I-9 must be retained either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by government agencies, such as the Department of Homeland Security and the Department of Labor.

Given that employers that intend to fully comply with their legal obligations can still make mistakes, such as using an outdated version of an I-9 form or making a late filing, it is imperative that regular internal I-9 audits be conducted. One of the most common I-9 mistakes is failing to satisfy the required deadlines, most notably the employee’s completion of Section 1 on or before the first day of employment and the employer’s completion of Section 2 within business three days of the start date. Another compliance misstep is failing to verify that the employee signs the form, which is essential to making the I-9 effective. Employers also frequently use the wrong version of the form, which is regularly updated (most recently, September 18, 2017).

Civil & Criminal Violations

Upon review, if completed forms are found to be missing or inaccurate, it is imperative to work to quickly address any such deficiency. This is because the law provides for both civil and criminal penalties:

Civil Violations

• Knowingly hired, or to have knowingly recruited or referred for a fee, an unauthorized alien for employment in the United States or to have knowingly continued to employ an unauthorized alien in the United States
• Failing to comply with Form I-9 employment verification requirements
• Committing or participating in document fraud for satisfying a requirement or benefit of the employment verification process or the INA
• Committing document abuse
• Unlawful discrimination against an employment-authorized individual in hiring, firing, or recruitment or referral for a fee
• Failing to notify DHS of a Final Non-confirmation (FNC) of an employee’s employment eligibility
• Requiring an individual to post a bond or security or to pay an amount or otherwise to provide financial guarantee or indemnity against any potential liability arising under the employment verification requirements

Criminal Violations

• Engaging in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens

Last year, the civil monetary fines for I-9 paperwork violations increased by almost 100 percent. For the first offense, the minimum fine increased from $110 to $216 per Form I-9 violation, while the maximum fine increased from $1,100 to $2,156 per Form I-9 violation. The fine increase became effective on August 1, 2016, and applies to all violations that occurred after November 2, 2015. The 2015 Amendments also provide for agencies to adjust for inflation their civil penalty amounts by January 15, 2017, and by not later than January 15 of each year thereafter.

What can make these fines even more onerous is that multiple violations can be found on each form. ICE interprets its regulations to allow a fine for each error on an I-9 and also fine a company based upon the percentage of I-9s that have substantive or uncorrected technical errors. Thus, a single incorrect I-9 can result in multiple fines. In addition, if the fail rate of a company exceeds 50% of their I-9s, ICE can assess penalties of $2,156 on each form, even if the same mistake appears on each one.

Willful Blindness to Undocumented Workers

In stepping up immigration enforcement, ICE also plans to target and punish employers that knowingly employ undocumented workers. The agency recently ordered Asplundh Tree Expert Company to pay $95 million in fines and civil penalties after the company admitted to employing undocumented immigrants. It is the largest civil penalty ever levied by ICE. According to court documents, Asplundh decentralized its hiring so the highest levels of management could remain willfully blind while Supervisors and General Foremen hired ineligible workers, including unauthorized aliens, in the field. 

In announcing the Asplundh settlement, ICE Acting Director Homan stated:

Today’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet.

In light of the increased immigration enforcement, employers should make sure that their hiring practices comply with all Employment Eligibility Verification rules and that they have the required paperwork to document their compliance. For employers that regularly hire foreign workers, it is advisable to have an immigration compliance policy in place and conduct regular employee training for those assigned to compliance.

As with any potential government investigation, being prepared can also go a long way to easing the stress of the situation. That means verifying that all paperwork is up to date, designating a key employee to serve as the ICE point of contact, and informing staff about what to expect during an audit.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Gary Young, at 201-806-3364.