Employers Targeted by ICE

While the whole nation has been focused on our country’s economic woes, Iranian protests and the death of Michael Jackson, ad nauseum, the issue of illegal immigration has been pushed to the cobwebby recesses of most of our minds. However, if you are an employer, you need to refocus on the employment eligibility of your workforce.

U.S. Immigration and Customs Enforcement (ICE) announced on July 1 that it issued notices of inspection to 652 businesses nationwide, beginning the involuntary inspection and auditing of those companies’ hiring records. The purpose is to determine whether the businesses are complying with the immigration laws, particularly the requirement that companies have an I-9 employment eligibility form completed on each employee and that the documentation used by the employee reasonably appears genuine.

The 652 notices that ICE issued on the first day of this month exceeded the number of similar notices (503) issued by ICE during all of fiscal year 2008. ICE has been warning employers since April 30 that it is going to concentrate less on the business raids like the one at the Swift plant in Cactus two years ago that separated young children from their families. Instead, ICE is going to be focused on investigating and prosecuting employers who employ illegal workers.

Ten percent of the 1100 criminal arrests ICE made last year resulted in charges against owners, managers, supervisors or human resources directors, not the illegal workers who may have stolen identities, faked social security numbers or forged papers. Do you want to go to jail for harboring illegal immigrants for financial gain?

Just for having your I-9s out of order, even if your workers are all eligible to work in the United States, you can be fined up to $1100 per worker. If you have “constructive knowledge” from circumstantial evidence that you are employing illegal workers, you can face both civil and criminal penalties of up to $2200 for a first offense, $11000 for two offenses and six months imprisonment. If ICE can show that you knowingly employed at least 10 illegal workers for 12 months, you face imprisonment for up to five years.

Let’s say that you don’t believe that you employ any illegal workers. You may still have documentation problems. Go through your personnel files just to check for these issues:

  • Does every file contain a completed I-9 form filled out when the employee first started working for you? I can’t tell you how many of the forms I have seen don’t have both sections 1 and 2 filled out and signed.
  • Did you photocopy the documentation the employee produced that you are relying on? Copies are the best way to show why you believed the documents were valid. Double-check these. Upon a closer look, you will see slight irregularities that should have caused you concern at the time. Compare the documents you received to the genuine articles in the Employer’s Handbook provided by ICE on its website (click here).
  • If you have hired an employee since Spring 2009, have you been using the updated I-9 form, revised on February 2, 2009? (Click here for a pdf copy).
  • Have you calendared the dates necessary for reverification if your employee has work verification documents that will be expiring? Upon reverification, did you fill out Section 3 of the I-9 form?

Chances are high that your review uncovered some problems with your I-9 forms. The time to correct those is before ICE serves you with a notice of inspection, particularly if your company is engaged in one of the businesses ICE checks frequently because of past violations in these industries: agriculture, cleaning services, factories, slaughterhouses, construction companies, or other blue collar industries.

Although you will often hear about ICE targeting big employers like Wal-mart and Tyson Foods, they also inspect local small businesses if they receive any kind of tip (from disgruntled employees, competitors, the public or other law enforcement agencies) that a company is employing illegal workers.

It is clear from conversations that I have had with other federal law enforcement officers that the days during the Bush administration of the federal government being “nice” to businesses is over. If ICE or any other federal inspector shows up at your business, you will breathe a sigh of relief if you have gotten your record-keeping, such as your I-9s, into shape before the feds came knocking.

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