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."
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