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Form I-9 Compliance & Working with
ICE
Posted Sep 16,
2008
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This article was written by the attorneys of the Murthy Law Firm for
Murthy's Corporate Bulletin. If you are an employer or HR manager,
interested in the services offered by our firm, contact our
Corporate Services Manager.
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U.S.
Immigration and Customs Enforcement (ICE), is responsible for investigating
compliance with the Form I-9 requirements, as many readers of Murthy's
Corporate Bulletin are aware. The law creating those requirements is
known as the Immigration Reform and Control Act of 1986 (IRCA). The
September 2008 teleconference held by the Murthy Law Firm focused on the
importance of complying with I-9 employment eligibility verification. ICE is
empowered to investigate and determine if U.S. employers are complying
with I-9 procedures, as well as many other areas of employer-immigration
compliance. As reported in the news media, there has been an increase in the
frequency with which ICE examines employers to determine whether they are
following the law. As immigration has become an issue of great political
impact and focus by the public, the media, and elected officials, government
agencies tasked with enforcing laws prohibiting unauthorized employment of
foreign nationals are devoting more time and resources to the enforcement of
existing laws. It is important, therefore, for companies make concerted
efforts to comply with the law. This helps to ensure that they can continue
to engage in their businesses without interruption and without facing civil
and criminal penalties or the negative publicity associated with the
violation of immigration laws.
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Form I-9 Background and Compliance
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The I-9
requirement was created in 1986 as part of immigration reform and efforts to
target employers and their hiring practices as a way to address unlawful
immigration. These laws charge employers with the duty of verifying the
legal eligibility of their employees for the work for which they have been
hired in the United States. The law applies to all employees hired after
November 6, 1986. These employees are required to complete I-9 forms within
strict timeframes. Unlike most other areas of U.S. immigration law, the I-9
requirement applies to both foreign nationals and U.S. citizens. It is a
requirement placed upon the employer for all newly-hired employees. As the
government devotes greater resources to enforcing I-9 requirements, it is
even more important for employers to dedicate appropriate resources to
compliance. The Murthy Law Firm successfully helps and guides employers in
matters related to I-9 compliance. As with most legal matters, the best way
to protect a business is by implementing procedures that ensure that all
existing employees' I-9 requirements have been met, and that all future
hires will undergo proper I-9 document screening. Reviewed here are
highlighted questions discussed in the September 2008 teleconference for
employers and their representatives.
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Q: How is the Form I-9 filled out when the company hires a new worker?
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A new employee must complete Section 1 of the I-9. Section 2 must be
completed by the designated executive or manager of the employer, after
examining the original documents provided by the employee. The document
options are contained in the official List of Acceptable Documents printed
as part of the I-9 form. Section 1 must be filled out at the time of hire
and Section 2 must be completed within three days of the employee's start
date.
©MurthyDotCom
The I-9 form is kept by the employer. It is not filed with any government
agency. Employers must keep the I-9 forms for three years from the date of
hire or one year after the last day of the worker's employment, whichever is
later. The I-9 may be stored as a paper copy, microfilm, microfiche, or
electronically. An employer does not have to complete an I-9 for independent
contractors.
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The I-9 requirements and procedures seem simple on the surface. However,
they may be difficult to follow, as they can entail very complex issues.
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Q. Are there any particular reasons that ICE might start investigating
whether a business is in compliance with the I-9 requirement?
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There can be multiple reasons for the initiation of an investigation.
Generally, when trends are identified or information garnered by ICE that
raises concerns that the law is being violated, the chance of an
investigation is increased. There are five things most likely to cause an
investigation: (1) an anonymous tip based on facts, typically from current
or former employees or a law enforcement officer; particularly regarding
industries that historically have employed undocumented workers, (2) the
issuance of No-Match Letters from the Social Security Administration and
information from various Department of Homeland Security databases and
officers, (3) U.S. Department of Labor (DOL) audits of Labor Condition
Applications (LCA) filed in connection with H1B petitions, (4) USCIS studies
of filed H1B visa applications to U.S. consulates, and (5) random audits of
selected employers.
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Q. Is there anything that lets the company know an ICE investigation is
being started, so that the employer knows to speak to a lawyer to protect
its rights?
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A business will know that an investigation has been opened by ICE when it
receives the Notice of Inspection (NOI). The NOI gives the company three
days to provide the government with a series of requested documents and
answer the allegations. While the NOI is supposed to be issued by certified
mail or in person, the government’s failure to do so is not illegal. The
company’s failure to answer is considered a violation of I-9 retention
requirements.
©MurthyDotCom
In the alternative, an investigation may start with the issuance of an
administrative or judicially enforced subpoena.
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Q. What kind of documents does ICE ask the company to provide?
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The NOI
or subpoena that ICE sends the company can request (1) the I-9s completed
for all new hires since November 6, 1986, (2) W-2 reports, (3) the company
payroll, and (4) a list of current employees with their dates of hire and
termination (if any), dates of birth, current addresses, and social security
numbers. The government often also asks the company to provide quarterly
wage and withholding reports.
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Q. What happens after ICE finishes its investigation and states the
company violated the law?
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When the investigation is concluded, if ICE determines there are violations,
it may issue either a Warning Notice, which contains a statement of the
basis of the violations and the statutory provisions having been violated,
or a Notice of Intent to Fine (NIF). The NIF states the agency’s charges
against the employer, lists the laws violated, and identifies the penalties
ICE wants to impose. However, the employer has the right to a hearing before
an Administrative Law Judge (ALJ), which must be requested within 30 days
following the receipt of the NIF.
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Q: What are the possible penalties that a company might face?
©MurthyDotCom
If an investigation finds that an employer violated the I-9 law, there are a
variety of civil and/or criminal penalties that can be imposed. These
penalties can include civil fines as well as criminal fines and
imprisonment. Effective since March 27, 2008, many of the civil fines were
increased by about 25 percent. These fines are assessed per violation, so
the fines would be multiplied by the number of employees for whom violations
occurred. For violations committed after March 27, 2008, fines for unlawful
employment of foreign nations (with actual or constructive knowledge) are
from $375 to $3,200 for the first offense of employing an unauthorized
foreign worker, $3,200 to $6,500 for the second offense, and $4,300 to
$16,000 for the third offense. Violations considered more minor are
categorized as paperwork violations carry fines of $110 to $1100 for each
I-9 at issue.
©MurthyDotCom
Criminal penalties may also include significant fines and terms of
imprisonment of up to ten years.
©MurthyDotCom
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Q. What is a paperwork violation and can it be fixed?
©MurthyDotCom
Paperwork violations appear to include only instances with regard to initial
hiring, such as failure to complete, correct or supplement I-9s. In
addition, failure to re-verify an employee's continuing employment
authorization in an instance where there is an expiration date may also be
considered to be a paperwork violation.
©MurthyDotCom
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Q: Is there a way for a company to avoid or at least minimize the harm of
an ICE investigation?
©MurthyDotCom
As with
many things, the best defense to an ICE investigation is a good offense. The
best offense a company can execute is an internal audit of its I-9 and IRCA
compliance practices. An internal audit is a proactive investigation by a
business of its own procedures and practices in connection with I-9s. It
involves a review of each I-9 form and how it was completed to ensure that
there are no paperwork violations, as well as the other documents maintained
in compliance with U.S. immigration laws. It is often a good idea for an
internal audit to be conducted by a designated outside entity with
experience in I-9 and compliance matters, especially if one has never
previously been done. Existing procedures for I-9 completion, retention and,
if needed, re-verification should also be reviewed.
©MurthyDotCom
Conclusion : Murthy Law Firm Can Support You and
Your Business
©MurthyDotCom
The Murthy Law Firm has successfully conducted I-9 audits for employers
before and during ICE investigations. After an initial assessment requiring
review of a company's I-9 forms and other records, our attorneys make
recommendations on how to repair specific violations found and provide
advice on good general compliance practices with regard to the I-9
verification and document retention process. While the Murthy Law Firm's
team of experienced attorneys is available to represent clients in
negotiations with ICE and before Administrative Law Judges, our philosophy
is that advance planning is best. This includes conducting internal audits
to identify and resolve problems, as well as establishing an I-9 process
that satisfies DHS regulations. In this way, a company can have the greatest
peace of mind, knowing that it has acted in good faith in its efforts to
follow the law. We at the Murthy Law Firm look forward to working with you,
helping you with immigration and I-9 issues so that you can focus on
business.
©MurthyDotCom
"We know immigration matters!"
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