Every astute business person should know that Immigration and Customs Enforcement (ICE) has greatly expanded the number and scope of its worksite enforcement operations in recent years. Known as ICE Raids, these actions have resulted in a 45-fold increase in criminal worksite arrests. ICE officials have publicly stated that they are focused on all industries where employers knowingly have hired undocumented workers.
The targeted companies in particular include those involved in our country’s critical infrastructure construction. Other specially targeted companies include those providing services and/or goods to U.S. government agencies, landscaping services, food services, building cleaning services, and food processing plants, to name a few.
The government has sought punishment against both employers and employees through civil and criminal prosecutions. Fines may range up to as much as $16,000 per violation (per illegal alien employed), and criminal sentences for executives and supervisors can exceed 10 years in prison.
It’s up to you to make certain you comply with all federal laws related to employment. To help you do that, Murphy Law Firm lawyers can apply their significant experience with Immigration and Customs Enforcement (ICE) worksite enforcement operations and I-9 compliance. Mr. Murphy gained his experience while working as an immigration attorney with the Immigration and Naturalization Service (INS) and ICE for more than 10 years.
I-9 Audits – Employer Compliance with Immigration Laws
United States employers are required to be familiar with the U.S. Department of Homeland Security requirements for determining the work eligibility of their employees.
Each person employed in the United States by an organization with more than three employees is required to complete an I-9 form certifying they have reviewed documentation establishing either the U.S. citizenship or work eligibility of the employee pursuant to some visa or other immigration program. The I-9 program is usually viewed by employers as another government hassle until the day they receive notice of a Department of Homeland Security audit of their records. U.S. Immigration and Customs Enforcement (ICE) is permitted to conduct an audit of the I-9 files and directly related documents, if any, used in verifying the identity and work eligibility of workers in the United States with only three days notice to the employer.
Your best approach to avoiding the harsh consequences of ICE Raids is to first conduct an internal I-9 audit. Then you want to institute secure company-wide policies that comply with federal laws for the hiring of foreign nationals.
As an employer, you are responsible for the completion and retention of Forms
I-9. Absolutely every employee, regardless of citizenship or national origin, who is hired for employment in the U.S. must complete Form I-9, Employment Eligibility Verification. Failure to persist in having employees properly complete
I-9 forms may result in you or your company being fined from $110 to $1100 per violation on each I-9 form. Your organization’s failure to complete or retain I-9 forms may also lead to more serious charges of knowingly hiring unauthorized workers resulting in significant civil and criminal penalties. If an employer has hired an individual, after March 27, 2008, for which the employer knew or should have known was not authorized to work in the U.S., the maximum fine for the first violation is $3,200 per worker. This rises to $6,500 for a second offense and up to $16,000 per worker for a third offense.
Murphy Law Firm can help you comply with the government’s strict regulations. The firm provides internal audits and guidance to support clients in avoiding ICE raids, federal employer sanctions for I-9, Social Security, and other employment-related violations. Murphy Law Firm attorneys provide assistance to business clients with I-9 compliance, record-keeping, and electronic verification requirements.
E-Verify is the federal government’s Internet-based system designed to assist employers in meeting worksite compliance requirements. E-verify can help you confirm that newly hired employees are authorized to work in the United States.
The E-Verify system compares social security number data and information in the Department of Homeland Security databases to an employee’s name and other I-9 information to confirm the employee’s work eligibility.
To participate in E-Verify, your company must register on-line at the Department of Homeland Security’s E-Verify page and accept the electronic Memorandum of Understanding (MOU). This memorandum details the responsibilities of the Social Security Administration, the Department of Homeland Security and you as an employer.
Use of the E-Verify system provides three separate results: (1) that employment is authorized, (2) that the verification system is in progress, or (3) that the social security number and name are not confirmed. If a non-confirmation is received for an employee, your firm must re-verify the information, terminate the employee, or face consequences for hiring an illegal worker.
While there are some problems associated with the reliability and accuracy of the Social Security Administration’s databases, it is important to know that the federal government, as well as several state governments require the use of E-Verify or your company may face the risk of losing contracts and business licenses.
Some employers believe there is a significant detriment to the E-Verify program. That is, by signing the MOU, You agree to permit personnel from ICE and the Social Security Administration to enter your facility or facilities at any time. They are then able to review E-Verify, related records (forms I-9, SSA transaction records and DHS verification records) as well as other employment records and to interview an employer’s authorized agents or designees.
To assist you in meeting and dealing with all these issues, Murphy Law Firm attorneys can provide quality assistance in determining whether E-Verify is required for your particular company.
When employers hire H-1B employees and sign the Labor Condition Application (LCA), they agree to comply with certain responsibilities set forth by the U.S. Department of Labor (DOL). Some of those responsibilities include attesting to the employee’s wages, working conditions, and benefits to be provided to the non-immigrant. In addition, employers agree that the only work location or locations are those that are listed on the LCA.
DOL conducts audits of H-1B employers in order to ensure that they are in compliance with the LCA. Audits are typically triggered when a current or former employee files a complaint with the DOL. However, audits can also take place when the DOL targets a specific industry that they perceive as high risk for infractions, such as the computer programming and information technology industries.
Investigations begin with an initial audit letter from the DOL Wage and Hour Division investigating officer. The investigating officer can choose to meet with the employer to obtain an initial statement. Following the initial letter and statement, the investigating officer commences the investigation, which may take many months to complete. After the investigation is concluded, the investigating officer makes a final determination regarding compliance.
Penalties for failure to comply with all the requirements of the LCA include civil fines for willful violators, criminal fines and incarceration, payment of back wages, and debarment from participation in the H-1B program.
Although an employer cannot avoid DOL investigations, full compliance with the LCA regulations, detailed record keeping, and self-audits can help minimize an employer’s penalties if the employer is selected for a DOL audit.
If you are selected for a DOL audit, the Murphy Law Firm attorneys have experience in participating and responding to DOL investigators. However, you may find it appropriate to also consult with an employment attorney and a criminal attorney, if the violations appear to be sufficiently egregious.