May Law Group, LLC, conducts many I-9 audits each year for businesses. May Law Group has been hired by a major big box retailer to perform I-9 audits of subcontractors at work sites. Companies have hired May Law Group to perform I- 9 audits when ICE has requested company I-9s as part of an investigation. May Law Group uses an audit system which involves the creation of audit memorandums for each I-9 and the issuance of an audit report for all of the company's I-9s. This limits the potential liability on the part of the company as the I-9 audit memorandums tell the employer what needs to be done to establish the employment authorization of the worker in question and correct the Form I-9s for all but paperwork violations.
Since 1986, United States employers have been given the responsibility of enforcing United States immigration law through the I-9 verification system. Due to the Immigration Reform and Control Act of 1986 (IRCA), employers must confirm that every person hired is one of the following: a United States citizen, a United States lawful permanent resident, or a foreign national with authorization to work in the United States . Employers are subject to civil and criminal penalties for knowingly hiring or continuing to employ workers who are not authorized to work in the United States . Employers are also potentially liable for what are known as paperwork violations if they fail to comply with various recordkeeping requirements, even if the employer has never hired an illegal worker.
• The Department of Homeland Security requires employees to complete Form I-9, the Employment Eligibility Verification Form, by the date employment begins. Within three business days of the worker beginning the job, or on the first day of employment if a job will last less than three days, the employee must present identity and employment eligibility documents to the employer. The employee is given the choice to present various documents, such as a social security card or driver's license, from lists of acceptable documents. The employer is responsible for examining the documents to establish that the documents are genuine and concern the individual presenting them.
• Employers must keep I-9 Forms on file and available for the Department of Homeland Security's Immigration and Customs Enforcement (ICE) inspection for all current employees hired since November 1986. A new I-9 Form became effective December 26, 2007. New regulations modify what is acceptable documentation. For terminated employees the retention of I-9 requirement is the longer of three years or one year after employment is terminated. Copies of identity and employment eligibility documents are not required to be kept on file. However, an employer may elect to keep copies of the documents presented by the employee. If copies of documents are kept, they should be kept routinely for all employees and not selectively. If an employee has temporary employment authorization, such as optional practical training upon completion of a foreign student degree program, a reverification of employment eligibility must be conducted prior to expiration of the employment authorization document.
• ICE conducts raids on workplaces. Moreover, the Department of Homeland Security also may levy large fines against employers. The Department of Homeland Security conducts an estimated 60,000 I-9 audits a year of employers in the United States and has levied fines in excess of $1,000,000.
• IRCA's penalties can be quite severe. In addition to complaint driven investigations, ICE randomly elects to examine 2,500 businesses each year for IRCA violations. Fines range from $ 250 to $ 10,000 per violation and up to six months' imprisonment for knowingly hiring or employing aliens lacking work authorization. Paperwork violations are penalized by fines of between $100 and $1000 per violation with a cap of $1000 per employee. Each mistake on an I-9 Form counts as a separate violation. For companies with careless compliance, ICE virtually has the ability to name their penalty. Companies violating the anti-discrimination provision are subject to fines of up to $10,000 per worker plus any attorney's fees.
• The best way for an employer to avoid IRCA problems is to establish a meaningful I-9 audit system. Such a program should include the following elements:
• Education of all human resource and hiring personnel on the purpose of IRCA and how to comply with its requirements
• Establishment of a scheduling system to automatically remind an employer when reverification of employment authorization is required
• Conduct of a thorough, periodic review of all employee I-9 Forms or, for large companies, a review of a random sampling of I-9s.
• I-9 audits should review and evaluate the employer's current IRCA compliance procedures with respect to obtaining, completing, and retaining I-9 Forms. If all I-9s are being reviewed, the I-9s should be compared to a tracking form listing all present and past employees to ensure that the I-9 verification process was not omitted for certain employees. Deficiencies in specific I-9 Forms should be corrected and procedures enacted to guarantee future compliance.
Employers should pay particular attention to I-9 issues during mergers and acquisitions. When an acquiring company assumes successor liability, there is no requirement to complete new I-9s for employees of either company if the records of the acquired employer are maintained. However, liability for the acquired company's errors is assumed and the cautious acquiring firm should reverify each employee's work authorization with a new I-9. Additionally, the acquiring company should request indemnification from the acquired company for inherited IRCA violations and should then conduct an I-9 audit as part of its normal due diligence. In mergers or acquisitions in which the acquiring company does not assume any of the acquired company's liabilities, the acquiring company must obtain new I-9s. It should also review I-9s during due diligence and negotiate indemnification language as a protective measure in case successor liability is later imposed by a court.
May Law Group
Henry W. Oliver Building | Suite 908 | 535 Smithfield Street | Pittsburgh, Pennsylvania 15222
Phones: 412-291-4400 or toll-free 1-877-LAW-USIM or cell 412-496-8930 | Facsimile: 412-291-4401 | E-mail
