Are you concerned about a government agency showing up at your office door to see if you have been hiring illegal workers? Investigations are on the rise and you can be hit with some severe penalties if you’re not in compliance.
Brett Dreyer, worksite enforcement chief for U.S. Immigration and Customs Enforcement (ICE) says they are always on the lookout for “egregious employers.” Even single-location companies with only a handful of employees are subject to investigation.
“We don’t investigate based solely on the type of industry, yet the reality is that certain industries are more likely to have unauthorized workers.” Dreyer asserts.
This differs from the tactics of ICE’s predecessor, the Immigration and Naturalization Service, which was dissolved in 2003 and targeted specific business sectors believed more likely to hire illegal immigrants.
Case in point is the staffing industry. Google the words ‘immigration’ and ‘staffing’ and it will return dozens of newspaper articles from all over the country about staffing companies who have hired undocumented workers.
ICE believes there are about eight million unauthorized workers in the United States. Dreyer says a business’s size or the number of people it hires has no bearing on whether it is investigated.
But if they do ever come knocking, trying to do the right thing when it comes to proper Form I-9 procedures will have a bearing on how ICE views your situation .
“We understand an employer is not a document expert,” Dreyer says. “If a document appears to be genuine and the employer appears to be acting in good faith, he or she isn’t likely to be fined.”
ICE recommends employers use its IMAGE program, which provides education and training in hiring. IMAGE requires the use of E-Verify, an employment verification program allowing employers to compare an employee’s I-9 information with more than 455 million records in the Social Security Administration’s database.
The bigger part of the program, according to Dreyer, is the education component. ICE has an IMAGE coordinator in each of its field offices across the country and they are trained on compliance issues.
“Those agents provide free education and training to employers, and offer advice on how best to comply with the law.”
The feds say they aren’t out to get you, but instead are “trying to create a culture of compliance.”
In 2010, ICE conducted a record 2,700 work site investigations. They expect to exceed that number this year.
“We are looking to get to employers in all 50 states and territories,” Dreyer said.
ICE agents are checking for simple mistakes, such as blanks left unfilled, maiden names not changed to married names and forms that had taken longer than the maximum three days from date of employment for completion.
Companies are typically allowed to correct these minor errors with no fines levied, and business continues as usual.
Agents are also looking for more severe transgressions.
Employers can face penalties of fines or even prison terms if the feds are able to determine they acted in bad faith by knowingly employing unauthorized workers or failing to follow the Form I-9 process.
Beware, though. An employer must balance the need for proper papers with the need to not discriminate.
“An employer cannot specify what documents a prospective employee must present,” Dreyer says. Those are noted on the back of the I-9 form. ”Employers can be also fined for over-verifying or re-verifying when not required.”
Yikes. I guess you had better be paying attention to this if you’re not already.
Here are some tips for avoiding troubles with ICE:
- Be meticulous about following the rules
- Make sure every box is checked and all dates are correct
- When you hire somebody, their I-9 has to be completed within three days
- Also, an I-9 for each employee must be filed for three years after the date of hire or one year after employment is terminated, whichever is later
- Have one person, such as an office manager, fill out all the forms for consistency
- Store I-9 forms separately from other employment records (you only want to give ICE what they’re asking for, which is the I-9 form)
- Purge files of older, outdated forms (same reason as above)
- Take compliance seriously
You can find a list of ICE’s “best hiring practices” at www.ice.gov/image/best-practice.htm
{ 7 comments… read them below or add one }
Interesting; how can you over-verify, and what is considered discrimination in that case vs. just being cautious?
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Thanks for your comment Regan. Here is some amplification on that point according to Jenifer Brown, an attorney practicing immigration law with Ice Miller LLP, a firm based in Indianapolis. .
Employers sometimes ask Brown’s advice when they’ve discovered they have hired an illegal immigrant.
“The first question I ask is, how do you know?” Brown says. “We want to be sure we’re not doing anything discriminatory or perceived as such. When you find out for sure that an employee is not authorized for employment, you have to terminate them; your choices are very limited.”
Brown tells her clients to conduct internal audits of their I-9 files to be certain all information is in order.
“Part of the effort on I-9 compliance should be making sure that immigration status of an employee is not discussed,” Brown says. “We’re in compliance by properly and thoroughly completing the I-9 form. If a supervisor has information that may rise to actual or constructive knowledge that an employee is illegal, he or she is obligated to inform management immediately.”
As for “oververifying” specifically, it simply means an employer cannot ask for any other documents from a prospective employee beyond those noted on the back of the I-9 form.
Admittedly, the line between diligence and discrimination is VERY thin. Hence, the point of the article.
Great article David! The line is very thin and for staffing companies, we want to be certain we’re on the right side of it!
I’ve been to a few mixer events recently where this exact subject has come up. After all is said and done, the conversation always leads back to organization and document control. I can’t believe how many offices are still running a paper trail. I use to think I was organized and my system was in place until we went through an audit. That was a disaster! I learned a lot from it and afterwards transitioned our office into a paperless one. It was an expensive lesson to learn (not the transition but the hours of man power wasted to find the documents that were requested and seemingly lost). I just wish we would have had an e-office before the audit. That’s my best advice to people who are worried about being audited – Get organized! Get paperless! and train your employees on the proper I-9 procedures!! If you aren’t required to keep it, shred it and delete it! Only keep things for their required time unless they are subject to litigation hold. I am confident now but can say with certainty, I never want to go through an ICE audit again!
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This is all good and well and certainly TempWorks Software is doing everything it can to make compliance easy and paperless for our clients. That only makes good sense.
HOWEVER, the question begs to be asked, why are we in this situation of having illegal workers in the first place? Or rather, why is it that we wouldn’t want to have these workers here in our country? Wouldn’t we in their shoes want to seek out the same opportunities our grandparents came here for?
And what role do the entitlement systems that supposedly serve the poor and which have almost bankrupted our country play in our not wanting these workers here?
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Gregg, you raise some very interesting and valid points, although answering them involves going way above my pay grade, at least for the purposes of the article. Certainly worth pondering, even if we don’t have all the answers.
As for Kimberly, thank you so much for your insights into a process I only know about through my research. I am sure this material really resonated considering what you went through.
I am neither an attorney, nor a staffing industry veteran, so I was approaching this subject matter strictly as a storyteller. Usually the deeper I go into a subject, and the more time I spend with it, the more clarification I get.
This was just the opposite. The more I “learned,” the more confused I got. Ask one too few questions, you can get in trouble. Ask one too many, or just one of the wrong kind, and you can also get in trouble.
Kimberly, if you would like to write a 500-word piece on your audit experience, we would love to hear – and read – more. You can either get in touch with myself or Paul Phipps. Thanks again for all of your comments.
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Some say that illegal immigrants pay enough in taxes to cover what they are given in food, housing, and medical care. It has long been the American dream to come and make a life for yourself. It is what we were founded upon. I believe entirely that immigration reform is long overdue. A transitional status along with refined structure and availability should be detailed. These workers are working jobs that many people turn their nose up at. Many people swindle and hustle government benefits while these undocumented workers are out there slaving like a beast. The way and amount of subsidies that are distributed should be changed as well. Immigration and Government benefits are related in the need for policy reform. Many ill-educated Americans believe that if illegal immigrants would all leave, America could rebuild, gain momentum and prosper. Are they so dumb to realize where the foundation of their nation lies? We need to restructure America. We need reform. We need to reduce the amount of money put into war; draw back from foreign affairs to allocate more time to our own. Reform is key though. These immigrant workers contribute to economy stimulation. They spend their wages and in doing so they support local businesses who are then able to turn around and hire more workers. It’s not the worker’s that are the issue here. It is the government.
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Whether or not illegal immigrants should be granted the right to vote is not on our hands and our opinions do not matter. We, as business owners, have to follow the law. Which is hiring those who are legal to work. END. OF. STORY.
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