By: Eliot Norman
The Audits. As reported by the Wall
Street Journal and other major news media, ICE served Notices of Inspections
for audits of I-9 records on 1000 employers yesterday. This is part of an
ongoing administration effort to require employers to comply with the I-9 basic
requirements to obtain work authorization and identity documents from their
employees. An ICE spokeswoman emphasized that "the inspections will touch
on employers of all sizes and in every state of the nation with an emphasis on
businesses related to critical infrastructure and key resources." However,
the list of industries furnished by ICE indicates that nearly every industry
sector-- from agriculture to shipping-- has made the list of 1,000 audit targets.
E-Verify and State Enforcement. Your compliance may not stop with the
I-9 Forms. Employers may also be required to enroll in the electronic E-Verify
program if they are federal contractors or subcontractors or do business in one
of the states that mandate E-Verify. The U.S. Supreme Court just upheld
Arizona's E-Verify law on May 26th, and last week Alabama joined the list of
states passing copycat legislation. See map as of May 26th below.
The Risks. In short, for employers this is a confusing and costly
environment in which to do business, as federal and state governments seek to
punish employers that hire unauthorized workers. In addition, many employers
are being fined for paperwork errors on the I-9 forms even if their workers
were born in the United States. Paperwork fines alone can run $110 to $1100 for
each I-9. Substantive violations for employing unauthorized aliens are subject
to fines of $375 to $3200 for each alien (first offense). Total administrative
fines against employers have hit a record $7.2 million so far this fiscal year,
and there have been more than 150 criminal prosecutions against employers.
American Apparel had to fire or lost over 1500 production workers after one
audit; and Abercrombie & Fitch paid fines of over $1 million for I-9
What to do. If you receive a Notice of Inspection or subpoena, you
should ensure that all I-9 records are preserved intact until a confidential
audit can be conducted to determine the scope of any violations and whether the
forms can be corrected. If you have not received a Notice, now is the time to
conduct a sample audit of your I-9 records, decide whether you will need to
terminate or suspend any current employees, and determine what your rights and
responsibilities are under federal and state statutes.
If you have any questions, please contact Eliot Norman (804.420.6482 or firstname.lastname@example.org) or any other
member of our Worksite Enforcement and Immigration Compliance Group (see http://www.williamsmullen.com/worksite-enforcement/).