Guest blog by Josie Gonzalez, Gonzalez & Harris
U.S. Immigration and Customs Enforcement (ICE) announced today that it is issuing 652 Notices of Inspection (NOIs) to businesses in order to audit I-9 records that contain information regarding an employee’s right to work legally in the U.S.
ICE was quite candid about how these companies were selected. They were targeted as the result of lead driven investigations and as part of the agency’s initiative to focus “… its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers.”
Investigative leads come from a variety of sources including: disgruntled employees who complain about the company’s perceived disregard for immigration laws; employer filings of government labor certification applications to legalize the status of undocumented workers while continuing to employ them illegally; and consumer complaints that one’s identity is being used by an employee
Employers using E-Verify to verify the documents of new hires often harbor a false sense of security that they have hired a legal workforce. However, the incidence of identity theft is quite high; it is becoming increasingly common to find that workers have used valid documents that pass muster with E-Verify but belong to another person. Unbeknownst to most E-verify employers, the government announced that when it uncovers patterns of misuse and fraudulent documentation, it may refer the E-Verify employer to ICE for follow up investigation. (74 Fed. Reg., No. 98, pp. 24022-24027, May 22, 2009).
In a workforce comprised of many family members and friends, supervisors often know which employees are working with fraudulent documents. This knowledge may be imputed to management with resulting corporate liability.
During an audit, ICE demands the surrender of I-9s within three days. In this short timeframe, it isn’t possible to correct all I-9 deficiencies. For example, how can one update expired work authorization documents if an employee is on vacation? Nevertheless, employers facing surprise audits should make every effort to bring their I-9s into compliance by ensuring that there is an I-9 for all employees hired after November 6, 1986, that I-9s are fully completed and signed by both the employee and the employer, and that expired documents are updated. Corrections need to be initialed and dated; never backdate the forms.
Stepped up enforcement has only just begun. The smart employer will be proactive and conduct internal audits to ensure that a meaningful immigration compliance policy is in place and to uncover potential liability such as identity theft, use of fraudulent documents, careless completion of I-9 forms and — most importantly – evidence of the knowing hire or the continued employment of unauthorized workers.
Josie Gonzalez, an immigration attorney in Pasadena, California, is on the Board of Governors of the American Immigration Law Association where she chairs The Immigration Worksite Enforcement Committee.