In fiscal year 2012, U.S. Immigration and Customs Enforcement (“ICE”), the agency responsible for investigating and enforcing compliance with immigration laws in the workplace, set a record for the highest number of employer audits to date. The number of employers investigated peaked at 3,000 in fiscal year 2012, from 250 in 2007. Penalties against employers have also skyrocketed in recent years. The total number of fines imposed on companies grew from $1 million in 2009 to a staggering $13 million in 2011. Various states have also enacted legislation that imposes egregious sanctions and that can result in suspension of business licenses (though enforcement at the state level has not been heavily exercised yet). These figures demonstrate the Obama administration’s continued dedication to an aggressive immigration enforcement policy and to the critical need for businesses to ensure careful compliance.
Under the Immigration Reform and Control Act of 1986 (“IRCA”), employers must verify the identity and work authorization of all new hires working in the United States by using U.S. Citizenship and Immigration Services Form I-9. Each new hire must complete and attest to his or her employment eligibility on the form, on or before the first day of work. In addition, employees must show documentation of their identity and work authorization by presenting one or a combination of documents that the government has deemed acceptable for that purpose.
Employers in turn must examine the original documentation submitted by each new hire and complete the employer portion of the I-9 within three days of hire. The employer is also required to reverify an employee’s work authorization when a temporary employment authorization expires. In doing so, employers must be careful, as IRCA’s anti-discrimination provision expressly prohibits inquiry into a job applicant’s immigration status and forbids requests of specific documents. Employers also have the obligation to retain records for three years after the date of hire or one year after employment ends, whichever is later. Form I-9 records must be made available for inspection by authorized officials.
Failure to comply with IRCA can have important consequences for employers. Substantive violations of the law, such as acceptance of improper documentation or untimely completion, and technical violations, such as mistakes or omissions on Form I-9, will incur fines. Civil penalties range from $110 to $1,100 per I-9, with much higher penalties and even possible criminal penalties for employers who engage in a pattern or practice of I-9 violations. Further, employers are subject to liability for any I-9 actions that violate the anti-discrimination provision of IRCA.
While the I-9 process appears straightforward, there are many potential pitfalls. Employers must ensure that I-9 forms have been accurately completed and that documents provided by employees are acceptable and relate to the person presenting them. However, employers also risk violating IRCA’s anti-discriminatory provision if they overreact or press too hard when questioning the legitimacy of an employee’s document. At the time of enactment, IRCA intended to balance hiring authorized workers against illegal discrimination to ensure that every new hire, U.S. citizens and foreign workers alike, would be treated equally. These counterbalancing provisions of the law often place employers between Scylla and Charybdis: while compliance is necessary to avoid penalties, if it is too aggressive, it may be construed as illegal discrimination.
E-Verify, the federal electronic employer verification system, attempts to alleviate employers’ burden by verifying employee data entered on Form I-9 against Social Security Administration (“SSA”) and U.S. Citizenship and Immigration Services (“USCIS”) records. SSA records contain information relating to social security numbers, while the USCIS database maintains accounts of employment-based visas, as well as immigration and naturalization status. However, participation in the program is mostly voluntary, except for certain federal contractors and in some states where local law makes the use of E-Verify mandatory.
The government has fashioned the I-9 and E-Verify programs to facilitate employer compliance, but these systems are vulnerable to identity theft and document fraud and thus are not foolproof. Recently proposed revisions to Form I-9 are aimed at improving the current system, but federal legislation is required to create a more secure, fraud-proof system.
As Congress and the Obama administration turn their focus to immigration reform, improvements to the federal employment eligibility verification system will undoubtedly be a major component of any legislative package. A comprehensive plan is certain to include a mandatory electronic verification system. Legislators may also opt for a biometric social security card to address identity fraud concerns. There is considerable bipartisan support for such measures.
While it is unclear when immigration reform will become the new reality, it is abundantly evident that employer accountability will remain at the forefront of ICE’s enforcement policy. Therefore, it is crucial that employers evaluate their current I-9 programs and practices to ensure effective compliance.
Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at email@example.com. Eda Derhemi, a law clerk, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.