Employers Beware: ICE Workforce Investigations Surge in FY2018

Are you compliant? The law requires employers to review documents from each worker they hire to verify that the worker is legally present in the United States and authorized to be employed. This is done on Form I-9, Employment Eligibility Verification. While the Obama Administration had made worksite enforcement a major priority by conducting a record number of I-9 audits, the Trump Administration has made those previous efforts pale in comparison.

Criminal investigations, business audits, and arrests by U.S. Immigration and Customs Enforcement (ICE) surged in FY18 compared to the previous fiscal year, following a commitment made by ICE in late 2017 to step up its worksite enforcement efforts across the country. Specifically, ICE’s Homeland Security Investigations (HSI) opened 6,848 worksite investigations in FY18 compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively. All of these categories surged by 300 to 750 percent over the previous fiscal year.

While perhaps hiring foreign nationals without proper work authorization was once considered a cost of doing business, especially in the restaurant and hospitality and construction industries, owners and managers should rethink the practice and know their risks.

In the current environment, even employers who have not been accused of knowingly employing undocumented workers can expect site visits and can be held liable for clerical violations, subjecting them to steep civil fines. Well-intentioned employers often find inadvertent paperwork errors or technical violations during their internal audits; some seemingly harmless errors and omissions are actually considered substantive violations that carry significant fines. For example, the failure of an employer to ensure that an individual employee checks the Form I-9’s box for “citizen,” “lawful permanent resident,” or “authorized to work until a specified date” is a substantive violation. An employer’s failure to provide the date of hire in the attestation portion of the I-9, while a technical violation, is still actionable even if other parts of the form are dated.

While failure to check documents can have its consequences, so can over-documentation. By law, an employer should only accept either a List A document or a combination of List B and List C documents, but not both. Over-documentation occurs when an employer records a List A document and any combination of Lists B and C documents on the I-9 form. Over-documentation most often results in two different scenarios:

• The employee provides multiple documents, such as a U.S. passport (List A document), a state driver’s license (List B document) and a Social Security card (List C document). Rather than informing the employee that he or she must select the appropriate document(s) for verification, the HR or hiring professional simply records all of the documents on the I-9 form. This would constitute over-documentation.
• The employee appropriately presents either a List A document or List B and C documents, but for whatever reasons, the HR or hiring professional requests that the employee provide List A, B, and C documents. (It is important to note that Scenario 1 or 2 can occur during the re-verification of documents in Section 3, which can also lead to over-documentation.)

What’s the big deal? Once too many documents have been recorded on the I-9 form, over-documentation has occurred. Unless discovered and corrected immediately, over-documentation constitutes a permanent error and the employer can be held liable for immigration-related unfair employment practices — in other words, unlawful discrimination.

To avoid these problems, an employer should:

• Conduct an Internal I-9 Audit: Human resource personnel and others involved in the I-9 process should consider auditing their actual I-9 files as well as their compliance procedures. Updating and/or appropriately correcting technical violations on previously completed I-9 forms may be necessary. Re-verifying certain employees also may be required. While such remedial actions may not shield an employer from liability and fines, the amount of such fines will be mitigated by a number of factors, including the employer’s good faith, the seriousness of the violation, and the employer’s previous violations.
• Develop a Compliance Plan: Employers also may want to consider developing an immigration compliance plan that sets forth procedures for implementing and monitoring the verification of an employee’s authorization to work in the United States. Such a plan should include appropriate employee training, reporting obligations, as well as safeguards to ensure that whatever plan is implemented, it does not run afoul of U.S. anti-discrimination laws. A good practice is to limit the number of individuals responsible for I-9 compliance to one individual and make sure he or she is well trained. Another good practice is to keep I-9s separate from an individual’s personnel file, to safeguard personal information in case of an ICE audit.

This area of immigration compliance can be confusing and complex, and can have unintended legal consequences. Employers are wise to take preventive measures and to consult with an attorney before embarking upon this alone.