One of President Trump’s chief agenda items has been immigration enforcement. While the President’s intent may be to keep out terrorists, remove undocumented foreign nationals, and eliminate fraudulent visa practices, these efforts can also have a tremendous impact on U.S. employers. One of the ways this administration has ramped up its immigration enforcement efforts has been through an increase in I-9 Employment Eligibility Verification Form audits to ensure companies and organizations are engaging in fair, non-discriminatory hiring practices and only hiring individuals who have proper work authorization.
While the Form I-9 requirement originates from Section 274A of the Immigration and Nationality Act, all employers are required by law to complete and retain a Form I-9 for each employee, regardless of the employee’s immigration status in the U.S. So, even a company or organization with only U.S. citizen employees is not necessarily safe from a government-conducted site visit. For instance, the Immigrant and Employee Rights (IER) Section of the Department of Justice exists to investigate 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee, 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, 3) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and 4) allegations of unlawful retaliation or intimidation. Note that discrimination can be consider action both for or against U.S. workers or workers of a particular national origin, so if the IER receives a complaint about your company’s hiring or employment practices regardless of who it supposedly helps or harms, it can open a case against your company and investigate the allegation(s) made. Even if your company has not engaged in prohibited discriminatory practices, your company could still face severe penalties and fines for documentation/paperwork violations that may be found in such an investigation.
In the event that your company is selected for an audit and you have never inspected your Forms I-9 with an experienced counsel, it is possible that there will be numerous I-9 violations per form. These violations can be either civil or criminal. For example, in a recent I-9 case settlement, a national Chinese fast-food chain was fined $400,000 in civil penalties and was ordered to pay $200,000 in back wages for its unlawful practices. One of its primary violations was carrying on the practice of re-verifying lawful permanent residents when their green cards expired. In another case, a Florida staffing company was ordered to pay a fine of $120,000 for requiring non-U.S. citizens to present specific documents, among other violations. Without proper training in completing the Form I-9, it is not difficult to make sixty-plus violations per form—the average number of I-9 violations a government officer finds on a single I-9 form!
When the government is assessing monetary fines, one of the mitigating factors considered is good faith on the part of the employer. By proactively taking the first step to have an experienced counsel review your company’s Forms I-9 and making adjustments and corrections before the government pays your company a visit, you may be able to significantly reduce the amount of total fines or even avoid any penalties altogether.