Federal law requires employers to verify the identity and employment eligibility of their current and prospective employees and document their compliance using the Employment Verification, Form I-9. U.S. Immigration and Customs Enforcement (“ICE”) Homeland Security Investigations (“HSI”) has the authority[1] to inspect and review employer’s Forms I-9 and conduct workplace raids. Employers in Connecticut and other parts of New England face a fair chance of an I-9 audit and enforcement activity in their place of business. This note covers compliance with Forms I-9.
A violation for the unlawful employment of an undocumented worker can result in the imposition of fines to employers, the arrest of employers who knowingly employ undocumented workers, and the arrest of workers working without lawful authorization for employment in the United States.[2]
Employers targeted for compliance with federal employment eligibility requirements receive a Notice of Inspection (“NOI”) to review the employer’s Forms I-9 and approximately three business days to produce them.[3] ICE may also request the employer to provide additional supporting documentation, including a copy of the business’ payroll and a list of current employees.[4]
ICE officers will inspect the Forms I-9 for compliance. When technical or procedural violations are found, an employer is given ten business days to make corrections.[5] An employer may receive a fine for all substantive and uncorrected violations. Employers who are found to have knowingly hired or continued to employ unauthorized workers will be required to stop this practice, can be fined, criminally prosecuted, and face “debarment” a process which prevents employers from participating in federal contracts and receive other benefits from the federal government.[6]
The Department of Justice (“DOJ”) periodically increases civil monetary penalties associated with its enforcement activities, with the latest update published on January 29, 2018.[7] ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and previous history of violations in determining the amount.[8] Fines for knowingly hiring and continuing to employ unauthorized workers and/or substantive violations like failing to produce a Form I-9, range from the hundreds to the thousands of dollars per violation.
[1] See Section 274A of the Immigration and Nationality Act (“INA”)(8 U.S.C. § 1324a(b)(6)(B))
[2]INA §274A (8 U.S.C. § 1324a)
[3] See U.S. Customs Enforcement, Form I-9 Inspection Overview, available at: https://www.ice.gov/factsheets/i9-inspection. Last updated, January 8, 2018 and retrieved on April 9, 2018.
[4] Id.
[5] INA §274A(b)(6)(B) (8 U.S.C. § 1324a(b)(6)(B))
[6] INA § 274A(a)(1)(a) or (a)(2) (8 U.S.C. § 1324a(a)(1)(a) or (a)(2))
[7] 83 Fed. Reg. 3944 (Jan. 29, 2018)
[8] INA §274A(e)(5) (8 U.S.C. 1324a (e)(5))