Is Your Company in Compliance or Facing Fines? | The I-9 Employment Eligibility Verification Process
The Employment Eligibility Verification process was first introduced as part of the Immigration Reform and Control Act (IRCA) of 1986. IRCA attempted to dissuade U.S. employers from hiring undocumented individuals by imposing considerable fines against the employer and, for repeat or egregious violators, criminal liability against the employer’s officers or directors. The intended result of IRCA was to reduce illegal immigration by limiting undocumented individuals’ access to jobs in the U.S.
The tool that the U.S. government provided employers to use in compliance with IRCA and related federal regulations was Form I-9. That form continues to be in effect today, although it has had several different versions since its original implementation. In order to comply with the applicable federal regulations, Form I-9 must be completed by the employee and employer in a timely manner. Specifically, the employee must complete Section 1 of Form I-9 no later than the first day of employment. The employer must complete Section 2 of the form within three days of the employee’s first day of employment. Although the employee and employer must provide information for the completion of Form I-9, employers bear the ultimate responsibility for the proper completion and retention of the form.
The importance of properly and consistently completing Form I-9 cannot be stressed enough. In addition to making it illegal to hire undocumented individuals, IRCA also created civil fines for employers who, even though they employ only individuals authorized to work in the U.S., may nevertheless be in violation of federal law for not complying with the procedural requirements of the I-9 employment verification process.
The following is a list of the most commonly found I-9 violations:
- Improperly completing form I-9 Employment Eligibility Verification
- Failing to subject new hires to the I-9 verification process because they are presumed to be U.S. citizens
- Requesting that employees present a specific type or combination of identification documents at the time of the I-9 verification process
- Requesting additional documents from employees who are presumed to be foreign
- Using the wrong version of Form I-9
- Reviewing and/or attaching the wrong documents to an employee’s Form I-9
- Administering the I-9 process inconsistently
- Skipping the re-verification process for re-hires
This list is not exhaustive. Any one of the above-listed factors may be a violation of the I-9 verification process, even if the hired employees are U.S. citizens or otherwise authorized to live and work in the U.S. The type and amount of fines and penalties imposed by ICE will vary depending on the nature and extent of the violation found, but they typically fall within the following range:
The U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), investigates an employer’s hiring of undocumented workers or compliance with the I-9 verification process. The U.S. Department of Justice investigates I-9 verification practices that constitute discrimination against qualified workers based on their citizenship status. Both agencies have been increasing their focus on workplace audits in recent years, in order to identify and impose civil and/or criminal penalties on employers who are not compliant with the I-9 employment eligibility verification provisions. The following are examples of the outcome of a few of these ICE audits:
- Owner of China King Buffet, Green Bay, Wisconsin, sentenced to 15 months in prison for harboring undocumented aliens to work at his restaurant.
- Four Seasons Earthworks, a family-run construction business legally employing 22 employees, all authorized to work in the U.S., was still imposed a $9,500 fine for incomplete I-9 records.
- Infinite Visions, LLC, a clothing manufacturer in New Jersey was fined $625,000 for I-9 form and recordkeeping violations.
- Aquila Farms, LLC, a Michigan dairy farm, and its owners were ordered to pay nearly $3 million in penalties for knowingly hiring undocumented aliens.
- HerbCo, a Washington-based supplier of fresh organic herbs to nearly 2,700 grocers, was fined $1 million for knowingly hiring undocumented aliens; the corporation executives were sentenced to one year probation for aiding and abetting a pattern and practice of employing undocumented aliens.
- Centerplate, Inc., a food service/hospitality company in South Carolina was charged with discrimination against employment-authorized aliens by requiring specific documents to prove employment authorization. The company agreed to pay $250,000 in civil penalties.
At DeWitt, we have the knowledge and experience to help you review and when possible, guide you to ensure your existing I-9 records are correct. We can also train your human resources and administrative personnel to ensure consistent compliance with the I-9 Employment Eligibility Verification process. If you believe that your company’s I-9 practices have not been consistently applied, or you would like to ensure that your company’s practices are in compliance with the I-9 verification process, contact Attorney Raluca (Luca) Vais-Ottosen at email@example.com or (608) 252-9291.
About the Author
Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.
Contact Luca by email or by phone at (608) 252-9291.
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