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Small Business - HUGE RiskTo ICE, size doen't matter! In 2008, a family owned manufacturing company in Colorado was fined over $17,000.00 for Form I-9 violations. This company had NEVER HIRED AN ILLEGAL WORKER, they simply did not follow strict Form I-9 procedures. The company employed approximately 15 people most of whom were family friends or acquaintences. At some point, the business owner, who was responsible for hiring new employees, ran out of blank Forms I-9 and stopped completing them for new hires. He felt the forms were unnecessary since he knew that everyone he hired was born in the United States. In the spring of 2008, the business was visited by an ICE officer who served a Notice of Inspection (NOI), requesting all Forms I-9 for current employees and all forms going back 3 years. The company provided what forms they had however, many were missing. The company was fined $1,100 for each requested form they could not provide. Of the Forms I-9 that were provided to ICE most had clerical errors that cost the company from $100-$1100 per error. The company retained an attorney who tried to negotiate a smaller fine. The judge found that the company could not show a "good faith" attempt to comply with the law and refused to reduce the fines. The company could not withstand both the cost of the attorneys fees, court costs, and civil fines. The company filed bankruptcy shortly afterwards. Top...Local Restaurant Suffers Heavy FinesIn December 2008, a Denver restaurant was served a Notice of Inspection by ICE agents and was ultimately fined over $65,000 in civil penalties for Form I-9 violations. The Notice of Inspection demanded all current employees Forms I-9 and approximately 325 former employees going back 3 years. The restaurant stored it's archived employee records in several off-site locations, including the restaurant owner's basement! It took several restaurant managers and employees working nearly around the clock to meet the 3 day deadline imposed by ICE. Most of the violations found by ICE auditors were clerical errors or incomplete forms. The restaurant had employed several different hiring managers during the 3 year period and all apparently had very different training, or no training, in the proper completion of the Form I-9. At some point, the hiring managers decided it was "okay" to make photocopies of the work authorization and identity documents the new hires provided, staple them to a BLANK Form I-9, and store the form in the personnel files. Each of these incomplete forms cost the company $1,000 in civil penalites! Ultimately, the restaurant could not negotiate the fines with ICE because they had no corporate policy or plan for compliance concerning the Form I-9 and the employment authorization verifcation process. Top...The Form I-9Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), requiring all employers to complete a Form I-9, Employment Eligibility Verification, within 3 days of hiring a new employee. The purpose of the Form I-9 is to allow the employer to verify the employee's identity and eligibility to work in the United States. EVERY PERSON HIRED MUST COMPLETE THE FORM I-9, REGARDLESS OF THEIR NATIONAL ORIGIN, EVEN IF THE EMPLOYER IS CERTAIN THE NEW EMPLOYEE IS A U.S. CITIZEN. The Form I-9 must be completed for each individual hired by the employer. The employer must:
2. Attest under penalty of perjury the employer has verified the employee's work authorization status by examining certain documents; and 3. Retain the Forms I-9 and make them available within 3 days of a notice of inspection by certain government entities for 3 years from the date of hire or for one year from the date of termination; whichever is later. The new Form I-9, issued April 3, 2009 contains two affidavits made under penalty of felony perjury. Section 1 of the Form I-9 is an affidavit made by the employee swearing that he or she is authorized to work in the United States. Section 2 of the Form I-9 is an affidavit made by the employer swearing that he or she has examined the required original documents provided by the new employee and the documents appear to be genuine and related to the individual who presented them. If either of the affidavits are incomplete in any way (for example, the employee did not date the form), U.S. Immigration and Customs Enforcement (ICE) cannot prosecute the employee for felony perjury because the affidavit is incomplete. Instead, the employer will be harshly fined or charged with other criminal offenses if the two affidavits are not properly completed. The burden is on the employer to properly complete, maintain, store, and purge the Form I-9 according to the law. If an examination by the Department of Labor or ICE reveals the employer has failed to comply with its obligations under the Immigration and Nationality Act (INA) Section 274A(b), the government may issue a "Notice of Intent to Fine". The fact that an employee is a U.S. Citizen will not shield an employer from sanctions if the Form I-9 is not completed accurately nor will the size of the business or the lack of administrative resources shield the employer from fines. Top...Form I-9 Violations: Civil and Criminal PenaltiesINA Section 274A(e)(5) provides for civil penalties of $110 to $1,100 per deficient Form I-9 for employers who commit paperwork violations. Form I-9 violations can include failure to sign the form, failure to complete the form in a timely manner, or failure to list the appropriate work authorization and identity documents. Civil penalties for knowingly hiring or continuing to employee unauthorized workers range from $275 to $2,200 per employee for the first violation and up to $11,000 per employee thereafter. Civil penalties for accepting fraudulent documents may range from $250 to $2,000 per document for the first violation and up to $5,000 per document thereafter. Violations of employment eligibility verification procedures risk fines of $100 to $1,000 per offense. Criminal penalties for a pattern of knowingly hiring or continuing to employee unauthorized employees include up to six months in jail and/or a fine of up to $3,000 per unauthorized employee. Employers found to be harboring unauthorized workers face up to five years imprisonment for knowingly hiring ten or more unauthorized employees in a twelve-month period with actual knowledge that they were brought into the United States illegally; up to ten years imprisonment for helping an unauthorized employee enter the country illegally or harboring aliens for commercial advantage or financial gain. There are both "technical/procedural" and "substantive" failures. Technical/procedural violation will usually cause fines toward the lower end of the range of penalties. Substantive fines will be more expensive with fines in the upper range of the penalty scale. Top...Discrimination and Employment Verification ProceduresWhen it comes to the Form I-9, E-Verify, and other employment eligibility verification procedures, employers must be aware that certain practices may be considered discrimination. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) in the U.S. Department of Justice (DOJ) is the agency that investigates charges of discrimination arising out of employment eligibility verification practices. Employers who are determined to have unlawfully discriminated may be required to pay back wages and civil penalties and to hire or rehire workers. The OSC will investigate claims of:
The following article was written by SUSAN CARROLL in the HOUSTON CHRONICLE on July 1, 2009. Immigration Crackdown Goes After EmployersFederal officials on Wednesday announced plans to audit the immigration and employment paperwork of 652 businesses across the country, including 26 in Houston, marking a major increase in work site enforcement. The initiative is part of a growing push to target employers who hire illegal immigrants, a centerpiece of President Barack Obama's immigration enforcement strategy. The number of I 9 audit notices delivered to employers Wednesday eclipsed the 503 issued all of last fiscal year, and signaled the beginning of a "bold, new" ICE initiative, officials said Wednesday. The notices alert business owners that Immigration and Customs Enforcement will be inspecting their hiring records, including employment eligibility verification forms known as I-9s. John Morton, the assistant secretary for ICE, said in a statement that the nationwide effort is a "first step in ICE's long-term strategy to address and deter illegal employment." ICE officials said they could not provide names of companies that will be audited because they were selected based on tips and information from investigations. A total of 111 of the targeted businesses are in Texas, said Gregory Palmore, an ICE spokesman in Houston. Palmore said about 60 percent of the Houston-area businesses targeted involved companies with fewer than 100 employees, while the remainder involved larger companies. The companies fall into a wide range of categories, including manufacturing, restaurants, construction and trucking, Palmore said. Gordon Quan, a Houston immigration attorney and co-chairman of the firm Foster Quan, said the crackdown was expected inside immigration circles. "They're trying to establish that this administration isn't going to be rolling over and kowtowing to immigrants," he said. "The focus is going to be on employers and stopping the magnet to bring people across the border."A shift from the past In April, the Obama administration announced new guidelines that increase the focus on employers who break the law. The guidelines represent a significant shift from the past administration's work site enforcement strategy, which resulted in a series of high-profile raids across the country in recent years, including in Houston, but relatively few employer arrests. Mark Krikorian, executive director for the Center for Immigration Studies, a Washington, D.C., think tank that supports stricter immigration controls, called the audits a "step in the right direction." "If they're not going to do raids, they can at least do this," he said. "It's incomplete, but at least it's part of the answer. "If they keep it up, if it's not just a one-time publicity stunt, business across the country will sit up and take notice that they could be next and they better clean up their acts," Krikorian said. "Not just with existing workers, but going forward with new hires." Krikorian questioned whether the audits may amount to a "spoonful of enforcement to make the amnesty go down." The I 9 audits and investigations into suspected unscrupulous employers could help appease some critics in Congress who have said they would oppose a legalization program for the estimated 12 million illegal immigrants in the U.S. without first increasing border and interior enforcement. Beto Cardenas, a Houston attorney and executive counsel to Americans for Immigration Reform, a coalition of Houston businesses lobbying for immigration reform, said the audits send the message that the government is serious about targeting the Form I-9 compliance problem. "It's not something that's pretty, but it's part of interior enforcement," Cardenas said. "Now is this, as a standalone, the complete solution? No. That's why you have to have broad immigration reform, so it's not a simple iron fist approach for employers who were following the law as the law was written at the time." Caught in a Catch-22 By law, employers must file I-9 forms for all new hires, including U.S. citizens. Employers are required to check the documents that employees present as proof of legal eligibility and identification to make sure they "reasonably appear to be genuine," according to immigration officials. Norman Adams, co-founder of Texans for Sensible Immigration Policy, a coalition of local businesses including contractors and builders, said employers are caught in a Catch-22 when it comes to employee verification. "If you're in the roofing business, if you're in the concrete business, you don't have American-born workers showing up at your door," he said. "You have Hispanic workers showing up at your door, and they have what looks to be a legitimate Social Security card. "And under our current law, if they have a card that looks legitimate and you don't hire them because you suspect they are illegal, then you are guilty of discrimination" and could be investigated by the U.S. Equal Employment Opportunity Commission, Adams said. "That's the current system," he said, "and it's broken." susan.carroll@chron.comTop... 652 Businesses Nationwide Being Served With Audit Notices TodayThis information was released July 1, 2009 in a press release from U.S. Immigration and Customs Enforcement and reprinted from www.ice.govWASHINGTON - U.S. Immigration and Customs Enforcement (ICE) is launching a bold, new audit initiative today by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce. "ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE's long-term strategy to address and deter illegal employment," said Department of Homeland Security Assistant Secretary for ICE John Morton. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual. The 652 businesses being presented with a NOI today for a Form I 9 audit have been selected for inspection as a result of leads and information obtained through other investigative means. Due to the ongoing, law enforcement sensitive nature of these audits, the names and locations of the businesses will not be released at this time. In FY 2008, ICE issued 503 similar notices throughout the year. In April, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. The nationwide initiative being launched today is a direct result of this new strategy. -- ICE --Top... Crackdown on EmployersLOS ANGELES -- A senior U.S. immigration official said Monday that his agency will intensify a crackdown on employers of workers in the country illegally as part of the Obama administration's new immigration strategy. John Morton, the new chief of U.S. Immigration & Customs Enforcement, a unit of the Department of Homeland Security, said that the agency is set to increase the number of companies it will audit and systematically impose fines on violators. Form I-9 Violations could also lead to criminal charges, he said. On July 1, Homeland Security Secretary Janet Napolitano announced an audit of employers to verify whether their employees were eligible to work. Mr. Morton said that 654 companies are currently being audited and that many more employers will be notified soon that they also will be under scrutiny by the government. "You are going to see audits regularly and on a larger scale," Mr. Morton said during a two-day visit to southern California, his first since being appointed four months ago. "You will see the resuscitation of...civil fines." Tom Roach, an immigration attorney in Pasco, Wash., said that apple, cherry and grape growers in his area are panicking over the new crackdown. Few industries have come so close to admitting they cannot survive without the labor of illegal immigrants as agriculture. At least half of the 1.8 million crop workers in the U.S. are undocumented. Mr. Roach said a client who received a notification of inspection from ICE last month could face thousands of dollars in fines. "There is a ton of counterfeit documents out there. The employer does exactly what he is supposed to do, but he can still get in trouble," he said. As part of the audit, immigration agents review the I-9 forms and other records of a company. If agents conclude that a business knowingly hired illegal workers, criminal investigations follow. On Monday, federal prosecutors filed charges against Bellingham, Wash.-based Yamato Engines Specialists where 28 people were arrested in a February immigration raid, accusing the family-owned business of knowingly hiring illegal immigrants. The raid at Yamato was the first since President Barack Obama took office and attracted national attention. Calls to Yamato Engine weren't immediately returned Monday, the Associated Press reported. Fines for companies found to employ workers in the country illegally could exceed $800 per employee. "You have to make sure that the fine isn't just seen by these companies as part of their bottom line," said deputy ICE chief Alonzo Pena. Messrs. Morton and Pena said the government would promote use by companies of an electronic employment verification system, known as the E-Verify system. The system is voluntary in California and most states. Enforcement activity during the Bush administration focused on high-profile raids in which thousands of illegal immigrants were arrested and placed in deportation proceedings. Relatively few companies and their executives were prosecuted. The Obama administration has made employers the cornerstone of its immigration policy. "If we are going to have serious change, we must make sure the employer community is complying with the law," said Mr. Morton, referring to employers as the magnet that attracts thousands of illegal workers to the U.S. each year. About 11.5 million illegal immigrants live in the U.S., according to the Pew Hispanic Center, a nonpartisan research group. Without illegal immigrants, business executives in industries like construction, lodging and agriculture say they would be forced to radically change how they operate. "I'm scared out of my wits," said Bob Brody, who farms 334 acres of organic apples and pears in Washington state. "I can't get the bodies that I need to do the work because Congress refuses to pass immigration reform. Now I'm being asked by the government to play cop. Can you imagine the stress that is going to cause a grower?" Write to Miriam Jordan at miriam.jordan@wsj.com Printed in The Wall Street Journal, August 18, 2009, page A3 Top...Worksite Enforcement -
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