While violations of laws regarding legal employment authorization – purposeful or inadvertent – have always carried potential serious consequences for employers, recent efforts to focus on this area by the U.S. federal government make it increasingly important to understand the requirements in this area, as well as the potential consequences of being found in violation. While very little has changed in the underlying federal law, a new focus on vigorously enforcing existing laws make it critical for organizations, and particularly those involved in the hiring and human resources function, to review policies and procedures to ensure that appropriate actions have been taken and policies are in place to avoid potential fines or even criminal charges.
On January 25, 2017, President Trump signed an executive order titled “Enhancing Public Safety in the Interior of the United States.” In this order, the President set forth a goal of enforcing all immigration laws, including executing the immigration laws against all removable aliens, with a particular focus on those aliens where security issues, fraud, criminal convictions or activity, abuse of public benefits, those previously ordered removed, and those otherwise presenting a risk to national security or public safety. The President further directed the U.S. Immigration and Customs Enforcement Agency ICE to take all appropriate action necessary to hire and train an additional 10,000 ICE officers.
Penalties In the Millions
A tree-trimming company in Pennsylvania was fined $95 million in 2017 for employing unauthorized workers. During Summer 2017, an immigration raid at a bakery in Chicago revealed 800 workers without appropriate documentation (and therefore not eligible to continue working). The company estimated that these lost workers accounted for about 35% of its workforce. Homeland Security Investigations (HSI), the main investigative division of the U.S. Department of Homeland Security (DHS) recently reported that this one single agency division imposed $97.6 million in fines, forfeitures, and restitution payments related to its worksite enforcement mission.
Although HSI also focuses on disrupting gang, narcotics, terrorism, human trafficking, child exploitation, criminal activity, and illicit currency operations, it also plans to greatly increase its efforts in worksite enforcement – particularly in the context of employers who may be taking advantage of workers without legal authorization to work by paying unlawfully low wages or creating conditions similar to indentured servitude. In October, 2017, Acting Director of Immigration and Customs Enforcement (ICE) Tom Homan announced that he had ordered ICE investigative units to review the amount of effort allocated to worksite enforcement actions, and to increase those activities by a factor of four or five. He also stated that in addition to the recent practice of prosecuting employers for workplace immigration violations, ICE would return to the earlier policy of also removing from the United States unauthorized workers found during such investigations. In an interview with the Dallas Morning News in August, Director Homan said “You are going to see a lot more work-site enforcement this year. We will take action against those employers who knowingly hire illegal aliens.”
I-9s Critical For Compliance
One critical aspect of compliance for employers is the requirement to maintain correct I-9 forms for all current employees, as well as I-9 forms for former employees for the longer of three years from the date of hire or one year after the end of employment. If government agents possess a warrant, inspections may occur upon unannounced arrival to the worksite. In preparation for such a case, employers should designate a specific person or persons to interact with the agents, that person should contact legal counsel as quickly as possible, and employees should be informed that they have a choice as to whether to speak with the agents or not, and that they have the right to have counsel present for any questioning, should they choose to do so.
However, more typically, I-9 inspection would occur via an administrative process under which ICE would issue a Notice of Inspection and provide the employer with at least three days to produce the I-9 records. If errors are discovered, the employer will have 10 days to make corrections, and may be issued fines per knowing violation or erroneous I-9 from $375 to $16,000 and from $110 to $1,100 per substantive violation found. These fines can add up quickly to very large totals, and in certain circumstances, criminal charges may be brought against company or organization officials.
The law says in part: “[a]ny person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens…” (who are unauthorized to work and have been illegally brought into the U.S.), shall be fined or imprisoned for up to 5 years, or both.
In administrative investigations, employers should not consent to additional searches and may want to present the I-9 documents for government review in a segregated area.
State Laws Add Complexity
The I-9 system becomes even more complex with the emergence of state legislation, like the law that California passed in October, 2017 which places restrictions on employer actions regarding federal I-9 investigations. AB450 prohibits California employers from consenting to immigration enforcement officers entering nonpublic areas or from voluntarily allowing access to employment records without a warrant or other legal authority. This law also requires employers to provide employees with notice of government inspections and copies of inspections results and any obligations imposed.
Too Much Verification Is Prohibited
While employers are legally required to ensure that workers present required proof of employment authorization, there are also negative consequences for discriminatory or overly aggressive hiring practices. Discriminating, intimidating, retaliating, or even requiring too many or specific documents to complete an I-9, or asking illegal questions in the hiring or verification process, can lead to adverse action against an employer by government agencies, such as the Immigrant and Employee Rights Section of the U.S. Department of Justice under laws prohibiting unfair immigration-related employment practices. New efforts are also underway to ensure that such anti-discrimination laws are also enforced against employers who discriminate against U.S. workers.
Visa Employee Concerns
A separate executive order, issued on April 18, 2017, “Presidential Executive Order on Buy American and Hire American” declared it to be U.S. policy that in “order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad…” This further emphasizes the need set forth above to comply with applicable laws regarding employment authorization. This April 18 executive order also directs various federal agencies to “propose new rules and issue new guidance… to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”
In the specific case of employers who host H and L status foreign employees, the executive order also directed federal agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest paid petition beneficiaries.” The DHS Office of the Inspector General issued a report on October 20, 2017, detailing shortcomings in H-1B verification efforts, making recommendations for improvements, and reporting U.S. Citizenship and Immigration Service (USCIS) agreement and steps taken. These plans include an increase in targeted employment site visits (which also include site visits to investigate L visa status employers), better use of data collected, focusing on recurring violations and likely high-risk of fraud scenarios, prioritization of action against fraudulent or noncompliant employers, and other specific actions such as the establishment earlier in 2017 of a dedicated email address for any interested party to report suspected fraud and abuse of the system to USCIS.
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For more detailed information on what to expect from an ICE visit and how to prepare for one see What Visa Employers Can Expect When Inspectors Show Up
Similar avenues for reporting of fraud, abuse or other unauthorized employment by any interested party have been established for contacting the U.S. Department of Labor, EEOC, FBI, and HIS investigators. In any case, employers can expect more comprehensive and frequent verification efforts regarding employment authorization, and more avenues for employees, competitors, and the general public to report suspected violations. Those hosting H and L status holders should expect a more rigorous approval process, as well as greatly increased post-approval verification efforts by the government.
Customs Searching Digital Devices
Employers should also be aware of increased use over the past several years by U.S. Customs and Border Protection (CBP) and ICE of inspecting the data stored on electronic devices at borders and other ports of entry when arriving to, or departing from, the United States. Organizations should determine in advance what policies to set for transporting, and granting access to the data stored on, electronic devices such as phones, laptops, iPads, etc. when travelling internationally as the government asserts the right to inspect, copy, and possibly retain such data when individuals enter or exit the U.S. — without a warrant or reasonable suspicion. While such inspections remain relatively rare, they have increased greatly in frequency over the past several years, and organizations should be aware of this possibility that sensitive information and data could be disclosed in this manner.
It is clear that the federal government intends to focus on fraud, abuse, and intentional or inadvertent errors in hiring and employment practices, including I-9 and visa sponsorship compliance. This makes it even more critical to ensure that the hiring process, and I-9 process and record keeping, are compliant with all applicable laws.
What You Need to Do Now
Employers should review hiring policies and verify that the I-9 process is being completed lawfully – including ongoing maintenance of these files and reverification of employment authorization for those employees who completed an I-9 using a document whose validity has or will expire, and lawfully suspending employment of individuals who are unable to properly complete or re-verify (where required) an I-9 until such time as they are able to present sufficient documentation. The number of types and complexity of documents that may be acceptable for I-9 verification continue to increase and are often difficult even for experts to review. Organizations without the internal capacity to establish and maintain employment verification processes, or which encounter specific questions regarding whether or not specific documents presented comply under the law, should contact a qualified expert to instruct or prepare such procedures, or review legality of proffered I-9 documents. Similarly, employers should ensure that no questions asked in the interview and hiring process itself exceed those allowable under the law, and seek professional advice if unsure.