There have also been a number of well-publicized worksite raids by Immigration Customs Enforcement (ICE) that have resulted in the arrest of hundreds of undocumented workers. ICE’s aggressive worksite enforcement policy exposes business owners, corporate officers, and managers to potential criminal liability. In addition, the worksite raids cause substantial disruption of business operations and often lead to the loss of key employees. In such an environment, employers must be careful to review their business practices to ensure compliance and maintain an I-9 program that meets with ICE standards. It is estimated that for fiscal year 2020, ICE will perform more than 5,000 immigration audits on businesses throughout the United States. For fiscal year 2018, audits resulted in 779 criminal arrests, 1,525 administrative arrests and businesses were ordered to pay over 10.2 million dollars in judicial forfeitures, civil fines and restitution.
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An I-9 compliance lawyer could help companies avoid legal entanglements that may result from improper I-9 compliance. A well-versed immigration attorney can explain the laws and the function of Form I-9. They can also work to help companies to complete these forms and to deal with any potential complications that may arise.
Form I-9 allows both employers and immigration officials to determine an employee’s eligibility to work. Employers are required to fill out an I-9 form for all employees at the company.
In the process of completing the form, employers are required to examine specific documents that prove the employee’s eligibility to work in the United States and to provide copies of the documents along with the I-9 paperwork that is sent to the federal government.
These documents must prove both the identity of the employee, as well as their eligibility to work in the U.S. If a single document satisfies both requirements it is acceptable by itself. Some examples include:
In cases where an employee does not possess a document that satisfies both requirements, they must present a document that establishes their identity, and a separate document that details their authorization to work. For an employee to establish their identity, they can use items such as a state driver’s license or ID card, a voter registration card, a U.S. military ID, a Native American tribal document, a Canadian driver’s license, etc. If an employee needs to show they are authorized to work in the US, some acceptable documents may include an unrestricted U.S. social security card, an original or certified copy of a birth certificate, a U.S. citizen ID card, and more.
The penalties can be severe for employers who have not properly filed their I-9 paperwork. Companies can be subject to fines and be debarred from receiving government contracts in the future. If a business is found to be a habitual I-9 violator, it can be subject to criminal penalties.
E-verify is a recent initiative designed to make it easier for employers to collect and submit information related to employee immigration compliance. It is a web-based program that is voluntary for employers to use, unlike the I-9 paperwork, which is required in all circumstances.
In essence, the E-verify program takes submitted information from the I-9 form and compares it to digital records in government databases to corroborate the employee’s authorization to work.
There are some notable differences involved in utilizing E-verify versus only using the normal I-9 form. Notably, a social security number is required to use E-verify and submitted documents that prove identity must include a photograph in order to be valid, neither of which are the case for the I-9 form alone. Additionally, if employment authorization has expired, employers cannot use E-verify to establish an employee’s right to work; it must be done first through the I-9 paperwork.
There are instances when E-verify participation is mandatory. The program is not voluntary for federal contractors, employers in certain states and employers who chose to extend the initial work authorization period of recent foreign graduates in the Science, Technology, Engineering, and Mathematics (STEM) fields. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.
The burden of ensuring employees have the authorization to work in the United States lies with businesses. While it is illegal for undocumented immigrants or non-work visa holders to seek employment, it is just as illegal for companies to hire these individuals, intentionally or not. 8 U.S.C. § 1324a (b) places a legal burden on employers, and a failure to meet this burden could result in severe financial consequences.
A I-9 compliance lawyer could help employers fulfill their obligations to ensure the employability of workers. It is important to remember that employers do not need to be experts in authenticating the documents the workers provide. For example, it is reasonable to assume that an applicant who produces a passport carries a valid document. A brief examination of this document for authenticity is all that is necessary. The same standard applies to all documentation.
A lawyer could also be helpful in maintaining records concerning I-9 compliance over time. Immigration officials can request to examine a company’s I-9 records whenever they wish and having a proper filing and database system is essential to meeting those requests.
Only certain people are eligible to seek employment in the United States. This includes U.S. citizens, lawful permanent residents, and non-citizens who have work visas. Attempts to circumvent this system are common, and many employers struggle with authenticating workers. Further, U.S. immigration laws place this burden on employers, and a failure to properly authenticate employees can lead to serious legal problems.
An I-9 compliance attorney could help employers fulfill their obligations through I-9 compliance. This form offers guidance as to how to authenticate a person’s eligibility to seek work. An attorney can help evaluate the authenticity of a worker’s documentation, complete the I-9 forms, and maintain proper records in case of an audit. Contact an attorney today to see how they could help your business.
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