As employers brace themselves for the next wave of Form I-9 audits, it’s critical to plan a response strategy which is both thorough and efficient. Step 1: analyze a real-life I-9 subpoena and notice of inspection to ensure compliance on each point.
This subpoena and notice of inspection (courtesy of the American Immigration Lawyers Association) was issued by the ICE office in Seattle, Washington as part of the 1,000 I-9 audits sent last week. The subpoena commands the employer to personally appear before the ICE local office to give testimony and provide the requested documents. As is customary, the employer is given 3 business days. The subpoena below speaks for itself, but here are some interesting observations:
The investigators are requesting records of all current employees as well as any employees terminated in the last year (from Oct 2008)
Investigators will look to see if the employer has properly handled rehired employees
Independent contractors, temporary staff from an agency, and “on-call” individuals will be scrutinized as the employer must produce a roster and supporting documentation
Employers must produce Social Security no-match letters (technically known as “Employer Correction Requests”), although again, it is only going back 1 year
Employers must provide all immigration filings for foreign national employees requiring visa sponsorship
The NOI requests more than just I-9s: the employer must also provide employee roster, payroll reports, quarterly tax statements with the IRS, state unemployment insurance tax reports, etc.
Corporate information (articles of incorporation, business license, and annual report) must be furnished
Investigators will consider whether the employer participates in E-Verify
The employer must also provide copies of the organization’s I-9 procedures or policies, if available.
In reviewing these points, it’s important to consider the I-9 inspection process and newly released penalty guidance. Many technical I-9 violations can be corrected now, and developing a proper I-9 procedure (requested above) clearly demonstrates good faith. If you need assistance getting started, contact Tracker Corp for a free I-9 and E-Verify compliance kit.
Although the government is not releasing the names of employers that have been targeted in this latest I-9 investigative sweep, several online news sources have reported the raw numbers in various states based upon interviews with local ICE representatives. Here is a current breakdown by state:
According to one of the ICE representatives, “critical to infrastructure” employers included agricultural processors, large agricultural or food service employers, transportation companies, power plants and defense industry firms that have government contracts of at least $100,000.
Yesterday, DHS released an overview of the I-9 inspection process, which includes recommended penalties for noncompliance as well as guidance on how investigators should enhance or mitigate the assessed fine. The recommended penalties are presented in two schedules – one for employers who have knowingly hired or continue to employ unauthorized workers, and another for substantive and uncorrected technical violations on the I-9 form. In both schedules, the range of penalties is determined by dividing the number of violations by the number of employees (violation percentage) and then considering whether it is a first offense, second offense, or a third or more offense.
The substantive/uncorrected technical violation schedule is as follows:
Standard Fine Amount for each offense
Substantive Verification Violations
1st Offense
$110 – $1,100
2nd Offense
$110 – $1,100
3rd Offense
+
$110 – $1,100
0% – 9%
$110
$550
$1,100
10% – 19%
$275
$650
$1,100
20% – 29%
$440
$750
$1,100
30% – 39%
$605
$850
$1,100
40% – 49%
$770
$950
$1,100
50% or more
$935
$1,100
$1,100
After the “base” fine is determined, investigators can also “enhance” or “mitigate” the recommended fine by 5% for each of five separate factors, which include business size, good faith, seriousness, unauthorized workers, and history. The end results means that fines could be as great as 25% above or below the base recommended penalty.
Factor
Aggravating
Mitigating
Neutral
Business Size
+5%
- 5%
+/- 0%
Good Faith
+5%
- 5%
+/- 0%
Seriousness
+5%
- 5%
+/- 0%
Unauthorized Workers
+5%
- 5%
+/- 0%
History
+5%
- 5%
+/- 0%
Cumulative Adjustment
+25%
- 25%
+/- 0%
In addition, DHS has also provided a general roadmap for the I-9 inspection process, including the most common notices that employers will receive. The entire seven-page document is provided below.
Today, DHS Secretary Janet Napolitano announced a new “I E-Verify” campaign to promote the use of E-Verify and recognize the approximately 170,000 businesses which have already enrolled. The I E-Verify campaign will essentially consist of public service announcements, posters, window stickers, and other measures to make the public more aware of E-Verify. One such announcement is already posted on Youtube as shown below.
In addition to public relations, DHS also announced the opening of a new office in Buffalo, NY, with 135 specialists dedicated to resolving E-Verify inquiries. Enhancements to the system are also on the way, including a feature for employees to self-check their record with E-Verify before they apply for a job. Other compliance improvements will include:
Adding passport photos to the E-Verify photo matching tool
Verifying employer information against the Dun & Bradstreet database
Checking for duplicate employers at different locations
Monitoring employers who fail to meet the 3 day deadline or improperly use E-Verify to pre-screen employees.
The press release announcing “I E-Verify” can be seen here.
Today, the Department of Homeland Security (DHS) announced the issuance of 1,000 additional I-9 Audit notices to employers across the country, focusing in particular on those providing critical infrastructure and other key resources. This number is on top of the 654 I-9 audit notices issued earlier this year. Speaking at today’s workforce symposium in Washington, DC, Assistant Secretary John Morton (of ICE) reiterated the agency’s commitment towards creating a culture of voluntary compliance through aggressive investigations and outreach programs. Assistant Secretary Morton also provided recent statistics, showing the increased level of investigations and fines. The following table illustrates the dramatic increase in worksite enforcement this year:
Enforcement
Since April 30, 2009
All of FY 2008
Form I-9 Inspections
1,069
503
Total Fines Assessed
$15, 865,181 (142 notices)
$2,355,330 (32 notices)
Final Orders
$798,179 (45 orders)
$196,523
Cases Initiated
1,897
605
Debarred from federal contracts
45 businesses/47 individuals
0 businesses/1 individual
In addition, DHS released statistics from the 654 notices which were sent in July 2009. Of particular interest, the ICE agents identified roughly 14,000 suspect documents (16% of all viewed); assessed over $2 million in fines; and let 326 employers off with a warning.
The press release announcing these findings (and the new audits) is available here.
Today, DHS Secretary Janet Napolitano spoke at the Center for American Progress about the need for immigration reform while reinforcing the Obama Administration’s commitment to worksite enforcement and the expansion of E-Verify. Below is an excerpt from her prepared remarks concerning I-9 and E-Verify issues. Note the recent surge in E-Verify registration: approaching 2,000 employers per week.
Furthermore, we’ve transformed worksite enforcement to truly address the demand side of illegal immigration. We are auditing the books of thousands of employers suspected of relying on illegal labor to achieve an unfair advantage in the marketplace. As part of this effort, Immigration and Customs Enforcement audited more employers suspected of hiring illegal labor in a single day in July than had been audited in all of 2008. We’re also encouraging workplace compliance by expanding and improving the E-Verify system—an Internet-based system that allows participating employers to electronically verify the employment eligibility of new hires. More than 167,000 employers at 639,000 worksites use E-Verify. In the past month, the program has grown at the rate of nearly 2,000 employers per week.
Improved interior and worksite enforcement is a critical part of comprehensive immigration reform. We’ve demonstrated that when it comes to that issue, this Administration is committed to action.
The US Department of Energy (DOE) has released an I-9 inspection report of its Savannah River Operations Office in South Carolina, which found that several subcontractors were not verifying employment eligibility in accordance with federal law. The DOE conducted the inspection to determine if site subcontractors (which total over 800) were properly verifying the employment status of their employees, many of whom access the site, which is co-located with the National Nuclear Security Administration (NNSA). During the investigation, the DOE reviewed 600 Form I-9s from 21 subcontractors and conducted a judgmental sample of individuals who accessed the site during a six month period. In particular they found that:
Four contractors failed to use the Form I-9 at all. When interviewed, the subs stated they were unaware of the I-9 requirement.
Twenty-two percent (136) of the 600 I-9 Forms obtained from the sample of 21 site subcontractors were missing key elements, including Section 1 and Section 2 signatures as well as Section 2 documents. When questioned regarding the incomplete documentation, several of the subcontractors explained that they lacked proper oversight procedures to prevent mistakes.
Three subcontractors utilized E-Verify, while several others used “other internet-based databases” to spot discrepancies. One of the subcontractors using E-Verify noted that they only give employees 3 days to correct discrepancies.
As a result of the investigation, the DOE notified the NNSA and the Savannah River Operations Office and issued the following recommendations:
Ensure contractors establish a method to notify existing and future subcontractors to comply with federal requirements related to employment verification; and
Develop a process to notify contractors of the E-verify system.
According to the report (available in its entirety here), the site management concurred with all of the recommendations.
The Greenville News reports that 16 businesses have been cited for violations under South Carolina’s E-Verify law, but almost all have been waived under the law’s provision for first-time offenders. As previously reported, the South Carolina Illegal Immigration Reform Act requires employers with 100 employees or more to participate in E-Verify or only hire employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements). The law will expand to include all South Carolina employers in July 2010.
According to yesterday’s article, the SC Department of Labor has been checking up on organizations since July, citing approximately 16 businesses out of 600. The violations spotted are across the map: ranging from a company not having any verification system at all, to not verifying all of the new hires in the required time period, to accepting non-approved documents as proof of employment eligibility.
The citations totaled more than $60,000 in penalties, almost all of which were waived. Lawmakers predict that the state will eventually collect sufficient funds for enforcement from repeat offenders and other willful violators.
Minnesota Public Radio reports that one of the largest immigration crackdowns under the Obama administration quietly took place in the Twin Cities as a result of an I-9 audit at a janitorial services company. According to sources quoted in the article, 1,200 janitors were fired from their jobs last month after failing to produce acceptable I-9 documents. Unlike the high-profile raids of the past, apparently none of the unauthorized workers were arrested or otherwise detained by ICE. No details are provided on any fines levied against the company.
Earlier this week, E-Verify announced that the photo matching tool will automatically be part of the E-Verify process starting in December 2009. As previously reported, the photo matching process, also known as the photo screening tool, is an automated step in the E-Verify system which prompts you to compare an employee’s DHS-issued photo document with a photo displayed in E-Verify. At present, the photo screening tool will only “activate” when an employee presents a recent version of a permanent resident card (I-551) or employment authorization document (EAD) as proof of employment authorization. According to insider sources, E-Verify is looking to add photos from US passports and state driver’s licenses, but no timeline has been announced as of yet.
