New I-9 Enforcement Targets Employers With Hefty Fines and Criminal Liability
I-9 enforcement is no longer predominantly splashy worksite enforcement raids. I-9 enforcement increasingly involves ICE "desktop raid" or audits of employers’ Forms I-9 files. I-9 audits are more effective for ICE because they involve substantially less enforcement agent manpower, enable a dramatically increased number of inspections and increase ICE’s penalties and fines revenue.
A new era of vigorous Form I-9 employment eligibility verification enforcement has begun and EVERY business is at risk.
- "(ICE is) not just targeting the workers, but also the people who employ them, in the first place. That's a challenge. There are millions of employers in the United States."
--John Morton, Department of Homeland Security Assistant Secretary for ICE (Immigration and Customs Enforcement), Director of ICE 2008--
- "We want to send the message that your cost of business just went up because you risk your livelihood, your corporate reputation and your personal freedom."
- "We found that the fines were not an effective deterrent, employers treated them as part of the cost of doing business… Just a small fine or a slap on the wrist is not a deterrent...we see more robust criminal cases...the prospect of 10 years in prison carries much sharper teeth than just a small fine."??
--Julie Myers, former Department of Homeland Security Assistant Secretary for ICE (Immigration and Customs Enforcement), Director of ICE 2006-2008
New ICE’s enforcement guidelines require ICE officers to "obtain indictments, criminal arrests, or search warrants or commitment from a U.S. Attorney’s Office to prosecute target employers before arresting employees for civil immigration violations at a worksite." (emphasis added).
Employers, which include owners, executives, supervisors and mangers, could face multiple federal criminal charges for I-9 errors and violations including Harboring Illegal Aliens, Inducing Aliens to Enter the United States for Commercial Purposes, Making False Statements on a Form I-9, Aiding or Abetting an employee’s false statement, and Conspiracy to commit immigration law violations.
Liability is assessed for constructive knowledge, not actual knowledge. Constructive knowledge can be based on errors in I-9 Forms whether or not in the employee’s Section 1 or the employer’s Section 2.
Civil fines range from $110 to $1,100+ per occurrence—an occurrence is a single I-9 Form. Criminal penalties include imprisonment, asset forfeiture and forfeiture of profits. (Not to mention the lawyer’s fees you pay along the way to defend the company and company executives, officers, managers and supervisors pay to defend themselves.)
ICE and other federal agencies have hired hundreds of new investigators to inspect your I-9 records.
Below are a few of the many kinds of violations that will cost you…and possibly subject you to imprisonment:
- Employee fails to check a box in I-9 Section 1 = $1,100.00
- Company uses an outdated Form I-9 = $1,100.00
- Employee’s name is not printed in I-9 Section 1 = $1,100.00
- Form I-9 is not completed within three days of hire = $ 1,100.00
- Employer fails to sign Form I-9 = $1,100.00
- Employer fails to list the date of hire on Form I-9 = $110.00
- Employer fails to provide its address on Form I-9 = $110.00
- Failure to provide the employee’s maiden name = $110.00
- Employer enters a PO Box instead of the street address = $110.00
A dramatic example of ICE’s expanded I-9 enforcement reach is the July 2009 nationwide desktop audit enforcement actions. On July 1, 2009, ICE took the unprecedented action of delivering Notices of Inspection (NOIs) to 652 businesses nationwide; more than the total number of NOIs issued in all of 2008. That Form I-9 initiative is part of ICE’s new worksite enforcement strategy and is intended to hold employers accountable for their hiring practices. ICE’s new strategy covers the full range of options available to the government; including criminal prosecutions, civil fines and debarment. On November 19, 2009, ICE announced additional NOIs had been issued to another 1,000 employers.
In one week in 2009 more business were hit with I-9 fines than in all of 2008.
The July I-9 "desktop raids" reviewed more than 85,000 Forms I-9. ICE found 14,000 suspect Forms I-9: Sixteen (16%) percent of the I-9’s ICE examined were suspect; 61 Notices of Intent to Fine (NIFs) have been issued; $2,310,235 in fines were assessed. Five months later an additional 267 cases are still being considered for NIFs.
In the first six months since ICE issued its new enforcement strategy (April 30, 2009) ICE has dramatically increased its I-9 audits, inspections and enforcement:
- 45 businesses and 47 individuals have been debarred from government contracting (compare: in all of FY 2008 0 businesses and 1 individual debarred);
- 142 NIFs issued totaling $15,865,181 (compare: in all of FY 2008 ICE issued 32 NIFs totaling $2.3 million);
- 45 Final Orders issued for $798,179 (compare: ICE issued 8 Final Orders totaling $196,523 for same period of FY 2008);
- 1897 cases initiated (compare: 605 cases initiated during same period of FY 2008);
- 1069 Form I-9 inspections (compare: 503 Form I-9 inspections for all FY 2008).
In the first half of 2010 ICE has conducted audits of 2,900 companies and levied more than $5 million in fines against those employers. And this is just I-9 audit actions and does not account for criminal prosecutions and criminal fines and penalties.
ICE received substantial enforcement budget increases in FY 2009 and FY 2010. ICE retains the penalties it collects for future operations and funding. ICE coordinates its activities with many other federal agencies and state law enforcement. The Department of Labor shares Wage and Hour inspection audit data with ICE. Recently the department of Labor has hired an additional 250 investigators for wage and hour inspections.
Employer Liability Extends to Circumstantial Evidence and Constructive Knowledge
It is unlawful to knowingly hire or continue to employ unauthorized workers. "Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge that an employee is not authorized for employment may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about, or the employer deliberately fails to investigate such facts.
Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance. Employers may be responsible for properly completing and retaining Forms I-9 for workers on its worksites, depending on the circumstances, regardless of whether the employer is withholding taxes, for example when the employer thinks the worker is an independent contractor or subcontractor.