Will I-9 Violations Cost Your Business?

During July of 2009, Immigration and Customs Enforcement (ICE) initiated an I-9 investigation of Alyn Industries as part of an I-9 document audit initiative that is holding employers accountable for hiring practices. Alyn Industries (dba Electronic Source Company) manufactures printed circuit board assemblies for companies in the aerospace, military, medical, wireless and telecommunication industries. As of December 2010, they had 50 employees.

When Alyn submitted their Forms I-9 in response to the Notice of Inspection, ICE noted several deficiencies including Alyn’s failure to present Forms I-9 for 2 employees, failure to complete Section 1 for 1 employee and failure to complete Section 2 for 59 employees.  Based on the I-9 violations discovered during the audit, ICE issued a Notice of Intent to fine Alyn in the amount of $64,767.00.

When Alyn went to court they argued the fines were excessive because they are a small business, they had no previous violations and the company is a victim of poor economic conditions.  Alyn is a privately owned company that operates one worksite in California. Alyn also argued that they acted in good faith because after the ICE inspections they had enrolled in E-Verify and had instituted other I-9 compliance procedures.

In response to Alyn’s arguments, the judge reminded them the issue of good faith is based on whether the employer reasonably attempted to comply with its I-9 obligations prior to an ICE inspection. The important component of good faith depends on when the employer made the effort to comply.

In the end the judge ruled and Alyn Industries was ordered to pay $43,000 in civil money penalties as a result of Form I-9 violations.

Protecting your company from this type of action is a matter of proactively addressing I-9 issues through training, third-party audits, and compliance policies before an ICE inspection.  Once ICE issues a notice of inspection there is little you can do to mitigate the risk of fines.

Unfortunately many companies like Alyn Industries are doing too little too late to protect themselves against the penalties associated with a Form I-9 inspection.  Take action today. Contact I-9 Okay about Form I-9 training and independent I-9 audits.

Is the IMAGE Program Right for Your Business?

It may be time to take another look at the Immigration and Customs Enforcement (ICE) IMAGE program.  IMAGE stands for “ICE Mutual Agreement between Government and Employer”.  IMAGE was created in 2006 as an initiative designed to encourage employer compliance and strengthen hiring practices in order to curtail the employment of unauthorized workers.

Based on its original design, IMAGE was heavily slanted in favor of the government and gave little to no incentive for employers to join the program.  The original program required an employer to submit to an ICE I-9 audit and be subject to the same penalty structure as non-IMAGE employers.  As of January 2011 only 115 of the over 10 million employers in the U.S. had joined the IMAGE program.

Recognizing the existing IMAGE program to be a dismal failure, the government revamped the program in 2011 and began an educational campaign to give employers information about the new and improved, kinder, gentler IMAGE program.

To be IMAGE eligible an employer is required to:

• Enroll in the E-Verify program;
• Establish a written employment eligibility verification policy that includes internal Form I-9 audits at least once per year; and
• Submit to an inspection of their Forms I-9.

ICE agrees to:

• Waive potential fines if substantive violations are discovered on fewer than 1/2 of the employers I-9s;
• Where more than 50% of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue the minimum fine of $110 per violation;
• Not conduct another Form I-9 inspection of the company for 2 years; and
• Provide information and training after the inspection.

So, should you consider the IMAGE program for your business?  Opening your doors to the government can be a scary prospect and it is certainly not a decision to be taken lightly.   It is a good idea though to follow the government’s advice even if you choose not to participate in the IMAGE program.

Having a written company compliance plan is smart business and may very well help establish that your company takes Form I-9 compliance and employment eligibility verification seriously.  Conducting an internal audit will help you establish your current level of compliance, correct some mistakes, and establish a training program to move forward with stronger procedures.  These are all best practices to protect your business and mitigate the risk penalties during an ICE investigation.

Whether or not you decide to join in a partnership with the Federal government it is absolutely appropriate for you to heed their advice when it comes to addressing your Form I-9 policies and procedures.