Immigration Droppings

Do I or Don't I?: The I-9 Self-Audit And Who Does It?

Our office routinely performs I-9 self-audits.  In the course of preliminary conversations with potental new clients and existing clients contemplating a self-audit, this is the primary question.  What benefit do I get out of outsourcing an I-9 self-audit.  The answer is part legal, part experience and part common sense.

First, as an immigration law firm, we know immigration law and the different statuses.  For instance, there is a difference between a person who is on OPT and on an H-1B.  How that I-9 is completed and updated when the H-1B goes into effect is an easy example.  As we routinely deal with cases that are changes and adjustments of status, we know what status is authorized to work and when.  We also see these documents on a daily basis and know when there are potential issues impending.  

Our firm is part of the American Immigration Lawyers Association.  AILA is a top-notch organization that is on the cutting edge of communication with ICE and HSI as they ramp up worksite enforcement.  We get the information in much more depth and faster.  Some firms that provide wrap around litigation services, labor and employment law and HR counseling are excellent resources for those areas.  But they are not immigration lawyers.

Second, when determining whether or not to perform your own I-9 self-audit, think about who has been filling them out for the past several years.  Do they have the proper training?  Have they been to the recent conferences?  Are they tied in to the AILA resources?  Common sense says, is an independent third set of eyes better to review the I-9's than the set of eyes that completed the I-9 to begin with?

That last question is the one that captures the most attention.  A company can have either administrative or criminal liability.  If there is a knowing pattern or practice by the HR person completing the I-9's, wouldn't you want to know now and begin to mitigate the liability?   

Please confer with your current general counsel and determine if they are experienced immigration lawyers and if not, now is the time for that check-up.  

 

Philip Eichorn

www.eichorn-law.com

Louisiana Follows North Carolina Mandating E-Verify

Louisiana Gov. Bobby Jindal signed into law the following E-Verify bills, HB 342 (Act 376) & HB 646 (Act 402). The bills expand the use of E-Verify and mandate certification through E-Verify for businesses seeking public contracts.  This is similar to North Carolina's HB 36.  

It is important to see the trend here.  States are going to enforce the federal law and in doing so attempt to "protect" their voting public by rooting out those without proper work authorization.  Regardless of how you stand politically on immigration reform, we all as business owners must be cognizant of the federal work authorization laws and in particular I-9 compliance.  The best practice is to create a culutre of compliance and to have an independent third-party perform a "self-audit."  

Philip Eichorn

www.eichorn-law.com

I-9 Violations: Administrative and Criminal

What most small business owners do not know about I-9 compliance will hurt them; likely in the form of substantial civil penalties.  However, for those few business owners who are deemed to have knowledge that they are continuing to employ someone who is not authorized to work in the U.S. or have hired someone who is not authorized to work in the U.S., the penalty can be a criminal indictment.  The form of the criminal charges varies from False Statement charges to Mail Fraud and Wire Fraud up t and including RICO charges (yes like the mob bosses).    

The administrative penalties for substantive and uncorrected technical violations range from $110 to $1,100 per violation.  On the other hand a criminal fine can range from $375 to $16,000.  So if your business employs 50 people and each I-9 contains a de minimis violation that is left uncorrected, then you can probably be weigh the cost at about $5,500 to settle with ICE.  

I've recently done a series of I-9 self audits.  Every single company has had multiple substantive violations that could impute knowledge on the business owner that he/she was continuing to employ unauthorized workers.  Almost every single I-9 I've come across has contained at least one technical violation.  This is not an indictment on the small business owner's lack of knowledge.  Some of the largest companies in the country have been hit with inspections and have been fined; including Wal-Mart and Abercrombie.  

Now in North Carolina, HB 36 mandates the use of the federal E-Verify system for employers with more than 25 employees.  Not only do North Carolina employers have to maintain I-9 compliance or face federal issues, but if they don't use the E-Verify system, they now face state based penalties.  

This is the wave of the future.  In most cases, it is the dream of foreign nationals to come to the U.S. for employment and to build a better life for themselves and their families.  This is a primary avenue of enforcement for DHS.  If they can cut off employment opportunities then they hope to stem the flow of people who are violating the immigration laws.  For the states that inact the type of legislation as North Carolina did, they think they are protecting their residents.  Whether or not they are is unknown and whether or not the state law is constitutional is another discussion.   

My best advice is to create a culture of compliance within your company.  It is a critical first step.  Briefly, by performing a self-audit before ICE gets involved in your backyard, creates the beginning of a "good faith" argument that you are self-policing.  Then establish a written hiring and employment eligibility verification program.  Finally train your staff on compliance and outsource to an immigration law firm to handle annual audits.  Again, that is a very brief overview of the beginning of a culture of I-9 and work authorization compliance.  

Philip Eichorn

www.eichorn-law.com

North Carolina HB 36 - Mandating I-9 and E-Verify Compliance

Governor Perdue signed HB 36 into law.  Now we have to deal with it.  The very basics of the law mandate the use of E-Verify for all North Carolina employers who maintain more than 25 employees.  Understanding that authorization for employment is federal law and is dictated by the Immigration and Nationality Act (and found in 8 U.S.C. 1324a(h)(3)), this bill now forces larger businesses to comply with the use of the Department of Homeland Security and the Social Security Administration's E-Verify program as well as face potential state penalties if they do not.  

We can argue that employment authorization is federal law and that the states should not be enforcing federal law.  We can argue that this is substantially prejudicial to benficiaries of potential DREAM legislation and is going to cost businesses tens of thousands in I-9 compliance self-audits and E-Verify training and thus hamper the economy.  We can simply argue that this is a racially or culturally prejudicial law and is a back door to fixing the "illegal immigrant problem."  

Regardless of what we argue, there is another message here.  Even if somone challenges the constitutionality of NC HB 36, the federal law regarding employment authorization remains in place.  I-9 compliance audits by Immigration and Customs Enforcement ("ICE") are on the rise.  The Obama administration is targeting the employers; looking to shut off the economic dream to immigrants who have overstayed or entered without inspection instead of going after the individuals.  

A few weeks ago ICE issued over 1,000 Notices of Inspection to critical U.S. employers who are involved with our infrastructure.  Clearly aimed at protecting the national security, it is but the first step.  Many of the I-9 violations are for U.S. citizens and just sloppy paperwork.  Some I-9 issues are substantive in nature (people not authorized to work).  The potential federal civil fines for offenses occurring after March 27, 2008, range from $375 to $3,200 for eachunauthorized employee; $3,200 to $6,500 per employee for the second violation, and $4,300 to $16,000 for the thirdor additional offense. 8 C.F.R. § 274a.10(b)(l)(ii)(A) to (C). Potential paperwork violation fines range from $110 to$1,110 per violation. 8 C.F.R. § 274a.10(b)(2).

Performing a self-audit (by an independent third party immigration firm that understands the INA) now and training your HR staff to properly complete and maintain I-9's is a prudent and diligent business move.  By beginning this process, your company will substantially shield itself from substantial liability and/or mitigate the penalties through "good faith."  

In a recent meeting with American Immigration Lawyers Association, ICE admitted "there is an infinite number of possible errors that can be made on the I-9 form." 

 

Philip Eichorn, Esq.

North Carolina I-9 Compliance Law Firm