Your Company's Employment Eligibility Verification Compliance Program - A Boardroom Concern?
By Jonathan Gilbert Chair, Gunster, Law Leisure & Resorts Group | March 15, 2010
It is unlawful for an employer to hire or continue to employ an alien knowing the alien is an unauthorized alien with respect to such employment.
8 U.S. Code § 1324a(a)(1) and (2).
"Effective immediately, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration... Furthermore, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment."
ICE Worksite Enforcement Strategy April 30, 2009
Whether you are the Human Resources Director of a major hotel, the Head Greenskeeper at a Golf Club, a Restauranteur, or the CEO of a five-star resort, properly documenting a legal workforce through verification of acceptable identity and employment eligibility documentation and completion of Employment Eligibility Verification (EEV) Form I-9 should be a top priority. This article provides information on current governmental worksite enforcement efforts. Highly publicized administrative and criminal arrests at businesses across the spectrum of industries populate the news on a weekly basis. Just look at the U. S. Immigration and Customs Enforcement (ICE) website (www.ice.gov) and you will see a long list of specific enforcement actions reflecting the soaring number of worksite investigations. As an increased deterrent to hiring illegal aliens, ICE investigations are being used for criminal charges. Of the more than one thousand criminal arrests during 2008, 135 of those charged were business owners, managers, supervisors or human resource employees. As one part of a broader Department of Homeland Security (DHS) interior immigration enforcement strategy, ICE's focus on the workplace is an attempt to leverage the current mandate for employers to verify the employment eligibility of their workforce and thereby make the U.S. job market less of an attraction for illegal immigration. There is no indication that the emphasis on worksite enforcement will wane in the near future. Indeed, should comprehensive immigration reform be legislated, all indications are that it will increase the current sanctions for non-compliance and make electronic verification of employment eligibility mandatory.
As a prequel to immigration reform legislation in which ICE would like to see enhanced worksite enforcement sanctions and additional compliance requirements, DHS, the Department that includes the ICE agency, has stepped up the enforcement tempo by maximizing the use of existing laws and enforcement tools. First priority is given to investigations involving national security, public safety, or allegations of egregious worker exploitation. However, no business is immune from ICE investigations that are increasingly being used to support criminal charges, such as money laundering and harboring illegal aliens, as well as criminal forfeitures. DHS has administratively raised the value of fines and penalties that can be levied against employers for failure to comply with the EEV requirements. DHS and ICE are scrutinizing the business relationship between companies and their independent contractors to determine if companies are 'turning a blind eye' to workforce situations in circumstances that suggest constructive knowledge of unauthorized employment. The threat of a monetary penalty for failure to comply with EEV requirements may pale in comparison to the debilitating disruption of work occasioned by the removal of a significant number of employees. One company claimed that it lost tens of millions of dollars while replacing a substantial portion of its workforce lost in the wake of such an enforcement action.
On July 1, 2009, ICE issued Notices of Inspection (NOI) to 650 businesses nationwide alerting business that ICE would be auditing their hiring records for EEV compliance. This one-day total exceeded the entire number of NOIs for all of fiscal year 2008. Inspection results, information provided by local law enforcement officers, confidential and undercover informants, disgruntled employees, competitors and even the reports from unauthorized employees all may provide leads for further ICE investigation.
DHS has stated its commitment to assisting employers in complying with the EEV requirements. U.S. Citizenship and Immigration Services (USCIS), another DHS agency, recently updated their Handbook for Employers (M-274) to provide more comprehensive guidance and instructions for completing the EEV Form I-9 and ICE publishes a Guide to Selected U.S. Travel and Identity Documents (M-396) that contains examples of acceptable EEV identity and employment authorization documents. ICE has published a list of best hiring practices that are incorporated in its ICE Mutual Agreement Between Government and Employers (IMAGE) program initiated in 2007. Although voluntary, these practices reflect ICE's perspective regarding an employer's good faith compliance with the EEV law. IMAGE places an emphasis on self-policing and ICE believes that participation in IMAGE could lessen the likelihood that a company would be found to be in violation as well as enhance the company's image by linking it to sound hiring practices and avoiding negative exposure due to illegal employee activity in the workplace. ICE also suggests that there is increasing interest on the part of clients in contracting with compliant companies. Participation in the IMAGE program, however, does not protect employers from enforcement actions by ICE although ICE states that participation may be considered as a mitigating factor in the determination of a civil penalty amount should such a penalty be levied. Training on proper hiring procedures, fraudulent document detection and anti-discrimination procedures is also a benefit of participation in IMAGE.