I-9 Audits and Fines for IRCA Violations Increased Significantly in 2012
January 17, 2013
With 2012 now behind us and the start of a new year firmly underway, employers should be aware of the heightened possibility of an unexpected visitor showing up in the workplace in 2013. Under President Obama’s Administration, the U.S. Immigration and Customs Enforcement (“ICE”) has dramatically ramped up I-9 audits and enforcement actions, conducting more than 3,000 audits in fiscal year 2012, as compared to only 250 conducted in fiscal year 2007. With four more years on the horizon for this Administration, one New Year’s resolution that all employers should make is to ensure that their Form I-9s are in compliance before ICE comes knocking.
ICE serves as the principal investigative arm of the U.S. Department of Homeland Security (“DHS”). One of ICE’s primary purposes is to police the Immigration Reform and Control Act (“IRCA”). Under IRCA, employers are prohibited from knowingly hiring or employing unauthorized workers. Employers are required to complete Form I-9s for all employees, including U.S. citizens, hired after November 6, 1986, to verify an employee’s identity and to confirm that the individual is authorized to accept employment in the United States. Employers are also prohibited from discriminating against employees on the basis of national origin, citizenship, or immigration status, which includes engaging in “document abuse” (i.e., demanding that certain employees show specific documents because of the individual’s national origin, citizenship, or other protected status) or requiring “indemnity bonds” guaranteeing that the individual is authorized to work in the United States. For record-keeping purposes, an employer is required to retain completed Form I-9s for the later of three years after an individual’s date of hire or one year after the employment relationship ends.
Along with the steady increase in the number of audits conducted, the dollar value of penalties assessed for IRCA violations has also significantly escalated under the Obama Administration. Specifically, penalties have increased from $1 million in fiscal year 2009 to $13 million in 2012. Employers who knowingly hire or continue to employ unauthorized workers can expect monetary penalties to begin at $375 per violation and reach as high as $16,000 for repeat offenders. Employers may also be fined for errors found on the Form I-9s. Fines for substantive violations and uncorrected technical violations range from $110 to $1,100 per violation. In addition, ICE may also subject an employer to debarment, whereby the employer is prevented from participating in future federal contracts or prohibited from receiving other government benefits. Criminal penalties may also be imposed under certain circumstances. In the 2012 fiscal year alone, ICE arrested approximately 238 corporate managers and officers.
Taking affirmative steps prior to receiving a government audit notice or an on-site visit from ICE could mean the difference between a verbal warning, a monetary fine, or a criminal penalty, particularly if an employer chooses to contest the issuance of any ICE fines. Therefore, employers are encouraged to take proactive measures, which may include the following: (1) implementing a written I-9 policy, which includes anti-discrimination protocols and/or Social Security “no match” letter resolution procedures; (2) utilizing voluntary programs such as E-Verify (mandatory for federal contractors) and Social Security Number Verification Services (“SSNVS”) provided by DHS and the Social Security Administration to confirm employment eligibility; (3) training designated Human Resources personnel on proper I-9 verification procedures; (4) having an outside third-party or properly trained employee (who was not involved in the original I-9 process) conduct self-audits of I-9 records; (5) immediately correcting and documenting mistakes on Form I-9s; (6) instituting a confidential tip line for employees to freely report I-9 and/or work eligibility issues; and (7) avoiding any conduct that could be interpreted by ICE as encouragement of, acquiescence in, or constructive knowledge of, fraudulent I-9 documentation.
As reported on this blog in August 2012, employers should also be aware that a new Form I-9 is in the works. For now, employers should continue to use the Form I-9 that contains an August 31, 2012 expiration date. We will continue to monitor the availability and issuance of any updates pertaining to a new Form I-9 and will provide additional details on this blog when further information becomes available.
