What’s in a number? If we are talking about the increase in I-9 enforcement & penalties over the last 2 years, we are talking about a lot.
Picture this: The Department of Homeland Security (DHS) walks into your office and orders you to comply with an unannounced audit of your I-9 documentation. Would they find your I-9s in order and how much of a fine can you afford? With the national spotlight focused squarely on the immigration debate, the federal government has decided to deal with the controversial subject in a way that seems to make sense to most Americans – increased enforcement of rules that fine or otherwise penalize employers for hiring employees who are not authorized to work in the United States. And the primary process and documentation for employers to prove authorization is through the I-9 documentation.
The issue at hand is that an estimated 35-55% of I-9s contain incorrect or missing information - resulting in the potential tens of thousand dollars in fines (or more) to employers. Fines range from $110 to $1,100 per violation, and criminal prosecution may include forfeiture of assets, civil fines of up to $50,000, and prison terms. Obviously it makes sense to get your ducks-in-a-row before the Department of Homeland Security (DHS) shows up on unannounced at your doorstep and orders you to comply with an audit within 72 hours.
According to the Bureau of National Affairs (BNA), reports of penalties from worksite enforcement inspections increased five-fold in Fiscal Year 2010 (which runs from October 1, 2009 to September 30, 2010).
ICE Activity | FY2008 | FY2009 | FY2010 |
Form I-9 Inspections | 503 | 1,444 | 2,000 |
Criminal Arrests | 135 | 114 | 170 |
Final Orders | 18 | 52 | 214 |
Penalties | $675,209 | $1,033,291 | $5,300,000 |
So, how do you know if you might be a target for such an audit? Short of having a crystal ball, the best method of determining targets is to look at your industry. Are you in an industry that typically is known to hire illegal aliens? Examples of these types of industries include construction, agriculture, and housekeeping. If so, you can assure yourself that you are in ICE’s crosshairs. Don’t think that since you are a small employer they won’t look at you – ICE looks more at the industry than the size. Also, ICE works on credible tips. If you hire illegal aliens, you may find that a disgruntled former employee (disgruntled due to low pay, working conditions, or fired/laid-off) might have turned you in. Sometimes it is accidental – an employee is laid-off. They go to file for unemployment or other social service. During the interview process, a trained state or federal employee finds that they were not legally employed, which now opens the investigation process.
Now the big question: what do I do about it?
Actually, that is pretty simple – follow the rules (they really are pretty simple). Whenever someone is hired, they are required to complete an I-9 form within 3 days of their hire date. They must produce documents that are consistent with the instructions to provide proof of their legal ability to work in the United States. If they don’t provide you with the documentation (or it looks phony, like “Social Security Administration” is misspelled), send them home until they can come back with legitimate documentation. Note that you aren’t required to be an investigator, but it is often easy to spot the fakes. I once had a client company that had 4 people with the same Social Security number! There is an alternative called e-verify. E-verify is very structured, very easy to use, and provides a great benefit – it is a Federal Government program. That means, that if the feds give you the ok to hire a person, they can’t fine you for later finding out the documents used were false. For legitimate companies, the biggest issue is not completing an I-9 on all employees (like someone forgets their verification documents and you forget to follow up).
To assure that you will not have any issues, it is highly recommended that you audit your own I-9 process and existing I-9 documents for any discrepancies. Waiting until someone driving a government car pulls into the parking lot is not the best time to determine if you are compliant.
