Recent Publications
February 25, 2008
How Can I-9 Compliance Help An Employer Avoid Liability as the Government Cracks Down on Illegal Immigration?
Patricia
A.
Foster
Federal law requires every employer to verify U.S. employment eligibility for each and every new employee. Recently, the government released a new mandatory verification form and heightened its enforcement efforts against employers.
The number of illegal immigrants in America increased dramatically in recent years, even after the 9/11 attacks heightened security concerns about our large unauthorized population. The Department of Homeland Security (“DHS”) has responded, in part, by intensifying its focus on employers through U.S. Immigration and Customs Enforcement (“ICE.”) ICE works to keep unauthorized workers from obtaining U.S. jobs and punishes employers who knowingly employ them. Since 2006, the White House, Congress, and ICE have all issued statements emphasizing the burden on all employers to help combat illigal immigration. More recently, states have jumped on board, passing laws like those in Arizona and Oklahoma where employers in violation of imigration laws may lose their licenses to do business in those states.
The burden on employers includes the affirmative duty to verify U.S. employment eligibility for each and every new employee. That duty requires the good faith completion, retention, and production upon request of a document called a Form I-9. A new Form I-9 was recently released, and its use became mandatory as of December 26, 2007. The new form contains three sections, as did the previous version of the form. The first section requires every new employee to attest to work eligibility in the U.S. The second section requires the employer to attest to a review of the employee’s document(s) demonstrating both the employee’s identity and eligibility to work. The third section requires a repeat of the second section, but only for employees with temporary eligibility. Employers must retain completed I-9 forms for the longer of three years after employment begins, or one year after employment ends.
An employer may violate immigration laws in three basic ways. First, it is illegal to hire an alien knowing he or she is unauthorized to work. Second, it is illegal to continue to employ an alien knowing that he or she has become unauthorized to work. Third, it is illegal to hire any person (citizen or alien) without fulfilling the Form I-9 requirements described above. Therefore, regardless of whether employees are eligible to work or not, employers face substantial liability simply for failure to follow the I-9 process. Notably, if illegal immigrants are discovered within the workforce, an employer’s failure to fully comply with the I-9 requirements acts as proof that the employer knew of the employees’ unauthorized status.
Employers violating immigration laws may be fined between $275 and $11,000 per unauthorized employee, depending upon the severity of the violation, size, good faith, and history of the employer. Failure to complete, retain, and/or present I-9s may subject an employer to a fine between $110 and $1,100 per improper form. Employers engaged in a pattern or practice of immigration violations face not only heavy fines, but imprisonment.
Taking the process seriously and utilizing the right personnel are ingredients that help establish an employer’s good faith effort. Ongoing training and an annual audit of the I-9 process are best practices recommended by ICE. All employers, and particularly those that openly depend upon foreign-born workers, could be impacted by the crescendo of interest in immigration enforcement. Therefore, all employers, and especially those with a high-profile international workforce, should dutifully heed federal and state immigration laws, including fulfillment of their I-9 obligations.