Federal Government Expected to Increase Immigration Compliance Audits and Fines in 2015
All employers should be aware that the federal government is likely to devote increased resources to auditing employer compliance with immigrant employment laws in 2015. Those laws apply to large and small employers alike, and can often result in substantial fines for the unwary. All companies should take steps to familiarize themselves with these requirements and consider an independent audit to ensure that they aren’t taken by surprise, at potentially significant cost to the company, when federal auditors come calling.
The U.S. Immigration and Customs Enforcement (ICE), which is a part of the Department of Homeland Security (DHS), is authorized to conduct audits of an employer’s I-9 Employment Verification Forms (I-9 Forms) to ensure that the employer is complying with U.S. immigration laws in its hiring and employment verification practices. During its inspection of I-9 Forms, the ICE Auditor will review the Forms for suspect documents, and document discrepancies, untimely employment verifications, and technical paperwork violations. Based on the findings of the investigation, one or more of the following Notices will be issued: Notice of Inspection Results (the “Compliance Letter”); Notice of Suspect Documents; Notice of Discrepancies; Notice of Technical or Procedural Failures; a Warning Notice; and/or a Notice of Intent to Fine.
The recommended fines that can be imposed by ICE on an employer can be substantial. Those fines are determined under a range of fines for first, second and third offenses, and may be either enhanced or mitigated based on such factors as the employer’s business size, the employer’s “good faith,” the seriousness of the offenses, whether or not unauthorized workers had been employed, the employer’s history of prior offenses, and a “cumulative adjustment” based on so-called aggravating, mitigating or other factors involved in a particular case. Fines for simple errors, such as incomplete or incorrectly completed forms, range from $110 to $1,100 per violation. Fines increase to $375 to $14,050 per violation for “knowingly hiring or continuing to employ” unauthorized workers.
During the five year period from 2007 to 2012, ICE Audits of employer I-9 Forms increased from 250 to more than 3,000, an 1100% increase. In 2012, ICE issued more than $13 million in fines based on violations discovered during these Audits. More recently, a fine of over $228,000 was affirmed by an Administrative Law Judge against a Georgia construction company for (1) failing to ensure that 277 employees properly completed section 1 of Form I-9 and/or failing itself to properly complete section 2 of the Form; and (2) failing to prepare and/or present I-9 Forms for another 87 employees.
As part of its 2015 fiscal year Annual Performance Plan, the Office of Inspector General (OIG) will review the employer selection process utilized by ICE for I-9 Audits and will look at “whether ICE has effective policies and practices to identify and select businesses for I-9 inspections and re-inspections.” As a result of these anticipated policy changes, employers can expect the number of I-9 Audits and fines assessed by ICE to continue trending upwards in 2015.
The Firm’s Immigration Law Practice Group is experienced in counseling employers on I-9 employment verification and work authorization issues, including government I-9 Audits.
For more information on this Client Advisory, please contact:
Joseph DeGiuseppe, Jr., Chair, Labor and Employment and Immigration Practice Groups