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| Employers Beware: ICE Commences Nation-wide Audit of Business Immigration Records |
7/1/2009 |
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By Josie Gonzalez, Gonzalez & Harris
U.S. Immigration and Customs Enforcement (ICE) announced today that it is issuing 652 Notices of Inspection (NOIs) to business owners in order to review I-9 records that contain information regarding an employee’s right to work legally in the U.S. The purpose of the audit is to determine whether or not the company is in compliance with immigration laws. (www.ice.gov)
These audits are not being conducted simply on a random basis. Rather, businesses have been selected as the result of lead driven investigations, confidential informants and other sources. As stated in the ICE News Release, “ … ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers.”
Employers often are unaware of the various factors that can put them on ICE’s radar. Many feel that their responsibility begins and ends with the completion of an I-9 form for every new hire. In fact, evidence of knowingly hiring and/or continuing to employee illegal aliens can often be uncovered within the scope of an I-9 audit. Various audit trigger factors are listed below:
• The recording of unacceptable documents on the I-9
• Continued employment of individuals with expired work authorization documents
• Failure to follow up on complaints that employees are using the valid documents of another person
• Filing of applications such as the Department of Labor certifications for permanent residency for employees while employing them without valid work authorization
• Allowing employees to change their identities and present new documentation without verification of the validity of new documents
• Receipt of claims from various government entities such as the State Unemployment Office, or the State Franchise Tax Board that reveal an employee is using the identity of another person
• Employee arrests by law enforcement that reveals the use of fraudulent documents
• Consumer complaints to law enforcement that one’s identity is being used by an employee at your company
• Discharged Human Resource or Production Managers who file complaints about the company’s perceived disregard for immigration laws
Although you may feel that you have no worries because you have been using E-Verify to verify the legitimacy of identity and employment documents, the incidence of identity theft is quite high. Some new hires use valid documents that pass muster with E-Verify but belong to another person. The Department of Homeland Security (DHS) has announced that when it uncovers patterns of misuse and fraudulent documentation, it will refer the E-Verify employer to ICE for follow up and investigation. (74 Fed. Reg., No. 98, pages 23957-23958 and 24022-24027 (May 22, 2009)). A preemptive, internal audit of forms and review of document copies can uncover patterns of fraudulent documents.
It is not uncommon for supervisors to be aware of employees who are working with fraudulent documents. Because of mixed loyalties to employees who may be family members or friends, and because the company lacks a zero tolerance policy for the employment of unauthorized workers, higher level management is often unaware that such problems are brewing at the worksite. However, a supervisor’s knowledge may be imputed to management with resulting corporate liability.
Current paperwork fines range from:
• $110 to $1,100 for each I-9 violation.
Fines for knowingly hiring or continuing to employ an unauthorized worker range from:
• $375 to $3,200 for each unauthorized alien, first offense, and can escalate to a range of $4,300 to $11,000 per alien for subsequent offenses.
• In addition, employers convicted of crimes such as a pattern or practice of knowingly hiring or continuing to employ unauthorized workers or knowingly accepting false documents, or shielding an illegal alien from detection can face hefty fines, possible jail sentences and asset forfeiture.
The goal of our audit team is to ensure that a meaningful immigration compliance policy is in place and to uncover potential liability related to such problems as identity theft, use of fraudulent documents, knowingly hiring or continuing to employ unauthorized workers, and careless completion of I-9 forms. Should you need our services, please don’t hesitate to call me or, in my absence, please contact Julie Notley.
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