ICE Renews Commitment to Punish Employers

Most employers are not aware that several days ago Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security, sent a copy of its Strategic Priorities for Fiscal Years 2010-2014 to its employees.  The memo has not been made public, but you can read it here - ICE Strategic Plan.

The ICE Strategic Plan outlines the priorities on 3 very important efforts:

1)      Preventing terrorism and enhancing security

2)      Securing and managing our borders

3)      Enforcing and administering our immigration laws.

As part of the goal of enforcing our current immigration laws, ICE promises to enforce immigration related employment laws in order to create a culture of compliance among employers.

The strategy is a 2-pronged approach.  It includes aggressive criminal and civil penalties against employers who knowingly violate immigration laws, and continues to implement programs such as E-Verify (verifies employment eligibility to work in the United States) and IMAGE.

ICE is also promising to hire additional auditors to focus on employer’s Form I-9 compliance.  Based on government audits, ICE has collected over $15,000,000 in fines from employers, many who have never knowingly hired an illegal worker and made only clerical mistakes while completing the Form I-9, Employment Eligibility Verification.

It is important for every employer to understand that government enforcement of Form I-9 regulations is not going away anytime soon.  Developing best practices, learning about 3^rd party Form I-9 audits and seeking qualified advice concerning I-9 compliance is imperative in this new era of enforcement.

Don’t let your company be the next to suffer large fines resulting from an ICE inspection.  It could bankrupt your business!

What Every Employer Needs to Know About the People You Hire

The immigration debate is a hot topic.  Arizona recently passed controversial legislation causing an outcry from both sides of the debate.  Racial profiling, unlawful search and seizure and discrimination are just a few of the terms being bantered about.   Why should this matter to anyone who doesn’t live in Arizona?

It is hard to argue the current immigration system is not broken and I hope people a lot smarter than me are working on solving the problem.  For now, we must live with and work with the system that is in place.  A large piece of the illegal immigration puzzle is the Form I-9, Employment Eligibility Verification.

Using the Form I-9, every employer has the responsibility under the law to verify both the identity and work authorization of every person they hire regardless of that person’s citizenship status. This means filling out the I-9 form for every person hired and inspecting ID and work eligibility documents provided by the new employee.

Of course when the original Form I-9 process was developed in 1986, the ability to easily, quickly, and cheaply produce fake documents was not a huge concern.  However, in the current environment, technology is readily accessible to produce authentic looking documents in a very few minutes.

How Can an Employer Be Sure About the Work Eligibility of Who They Are Hiring?

The answer is “they can’t be sure” – and the law does not require that they are sure.  In fact, there are consequences for employers who refuse to accept documents if they appear to be genuine.  There are also penalties for employers who require certain employees to provide more documents than are required by the I-9 process.  Anti-discrimination laws protect employees from employers who may treat them differently because they sound or look foreign or have a foreign sounding name.

The government is providing more tools for employers to use to help them avoid hiring mistakes.  E-Verify for employers is an electronic verification system run by the Department of Homeland Security in cooperation with the Social Security Administration.  It is free to all employers.  Using information provided on the Form I-9, the employer can access the E-Verify system and check the work authorization of new hires.  Results are returned within a few seconds.

Of course, no system is perfect and E-Verify does not recognize identity theft in about 50% of the cases.  If someone has stolen another person’s identity, E-Verify only “knows” that identity is authorized to work – it cannot determine the person sitting in front of you is not that person.  For the system to work more perfectly, it would need to maintain a current photo of every person in the U.S. and match that information to the employee.  It is doubtful we will see that in the near future.

What Should a Well Intended Employer Do About Employment Elibigility Verification?

• Complete the Form I-9 at the time of hire for every new employee.
• Be sure the employee completes Section 1 carefully and accurately.
• Use the List of Acceptable Documents from the I-9 and carefully inspect the documents provided by the employee.  Record the document information accurately and completely in the document lists in Section 2.
• Use E-Verify for every new hire.
• Treat every person you hire the same, regardless of their name or appearance.

Proper completion and maintenance of the Form I-9 is the best tool currently available to employers to help them hire a legal work force. It isn’t perfect by any stretch of the imagination but it is what we have and it is the law.

The Form I-9 Is for Everyone You Hire – Yes, Even the Nanny!

The Senate Finance Committee published the findings of its review of documents submitted by Alan Bersin after his nomination to become Commissioner of U.S. Customs and Border Protection in the U.S. Department of Homeland Security. Mr. Bersin is currently the U.S. Attorney for the Southern District of California.

It seems only appropriate that an audit of I-9 forms for people employed by Mr. Bersin would be part of the review since it is the Department of Homeland Security that is responsible for enforcing Form I-9 compliance.  The Form I-9, Employment Eligibility Verification, is required for every person hired in the United States and must be completed by the employer no later than 3 business days after the date of hire.

Mr. Bersin employs 10 household staff members.  All 10 were treated as employees for tax reporting purposes, including unemployment taxes.  Some were paid by the hour and others were salaried individuals.  During a due diligence meeting, Bersin’s wife, Lisa Foster stated it did not occur to her to obtain I-9 forms for her household/domestic workers.  An incomplete I-9 for one of the employees was given to Ms. Foster by an employment agency.  Ms. Foster did not realize it was her responsibility to make sure the Form I-9 was completed properly.

If you have household help that you are paying as an employee, you must have a correctly completed Form I-9 on file. If you are a small business person and you are relying on a CPA, Employment Agency, or PEO to complete your new hire paperwork, you better make darn sure it is done correctly.  The Form I-9 is always ultimately the employer’s responsibility.  Leaving this important document in the hands of other may put you in hot water and could cost your business large amounts of money resulting from fines and penalties for Form I-9 violations.