I-9 Audits on The Rise; Employers Held Criminally Liable

The Department of Homeland Security’s Immigration Control and Enforcement (ICE) division has begun increased monitoring and enforcement of employer compliance with immigrant work eligibility rules. Employers face harsher civil and criminal penalties for hiring undocumented workers.

According to an article on the SHRM website, this effort includes issuing subpoenas for:

• Forms I-9 for all current employees and for all employees terminated over the past year.
• All U.S. Social Security Administration (SSA) “Employer Correct Requests” and “Requests for Employee Information” letters (also known as “no-match” letters) received in the prior three calendar years.
• Other payroll and business income information.

Experts say that receiving a “no-match” letter may be the first sign that an employer is under scrutiny.

Additionally, Cynthia Lange, a partner with Fragomen, Del Rey, Bernsen & Loewy LLP, recently told SHRM members at a Washington DC conference that ICE and the Department of Justice have begun criminally prosecuted hiring managers and HR professionals who hire undocumented workers. The agencies have used informants, often other employees, in collecting evidence for their prosecutions, she said.

Lange said the prosecutions have often involved federal conspiracy charges where two or more people are aware of a violation of the law. In other cases, she said, company executives have been charged with “harboring” illegal aliens, a charge previously used to prosecute smugglers who transport illegal aliens.

In an even scarier instance, Houston attorney Joseph Gagnon recently summarized the criminal case brought against a Houston employer who allegedly rehired an undocumented alien after he was deported. The employee has been charged with the murder of a Houston police officer and in an unexpected twist, federal criminal charges have been filed against the employer for his alleged role in helping the alien return to the US illegally and harboring him once he arrived in Houston. The employer faces up to 10 years in prison and a $500,000 fine if convicted.

To protect themselves, employers should review their processes for completing and retaining Forms I-9 from new hires. While employers are not required to maintain copies of the documents provided by new hires during completion of the Form I-9, many employment law attorneys are encouraging employers to do so as documentation of their good-faith effort to comply with the law.

DHS and the Social Security Administration are encouraging employers to use the E-Verify system (previously called the Basic Pilot Program or the SAVE Program) to electronically verify the identity information provided on the Form I-9 and the new hire’s eligibility to work in the US.

Adoption of this free web-based system has met with employer resistance because of its mandatory online tutorial, which can take up to an hour to complete, and the confusing process required when a new hire’s SSN and name does not match.

To assist employers in using the E-Verify system, Imperative Information Group has introduced i9 Advantage. This enhanced interface to the E-Verify system improves the usability of the system and offers other key advantages, including:

• Form I-9 Entry Validation – Real time validation of data entered into fields on the Form I-9.
• Duplication Alert – User is advised when entering a form for an employee who already has a form on file.
• Preventing employees from using the same SSN.
• Audit Log – All actions (creation, view and print) relating to a form are tracked and searchable.
• Up to Date Resources - FAQ's, articles and press releases are researched and provided on Form I-9 and immigration topics of interest
• Tentative non-confirmation - We walk you through a step-by-step resolution process
• Digital Form I-9 Storage – Searchable for review, audits and re-verification.
• Expiration Notices – Email notification of an employee’s expiring work authorization.
• Printable PDF’s – Search for stored forms and print in PDF format.
• On-Line E-signatures – No need to keep separate signatures files or forms.
• Permissions – Three permission levels allowing optimal security throughout the company.