Recent immigration raid is I-9 compliance reminder

U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) conducted a raid of a worksite in Dallas owned by a New Jersey-based tech company on April 3, arresting 280 employees suspected of working without proper documentation. The Department of Homeland Security called it the largest workplace immigration raid in a decade.

According to a government news release, HSI received tips that the company may have knowingly hired unauthorized immigrants, and initiated an audit of the company’s Form I-9 (Employment Eligibility Verification) records in January.

Last year, ICE significantly ramped up the number of I-9 audits, conducting 5,981 inspections in fiscal year 2018 compared with 1,360 inspections in fiscal 2017, a 340% increase. During a two-phased operation last summer, ICE issued more than 5,000 I-9 audit notices to businesses across the country.

Employers are required to complete and retain Form I-9 for all new hires in the U.S. to verify their identity and authorization to work in the U.S. and must reverify the employment authorization of individuals who have temporary forms of employment authorization. ICE initiates an I-9 audit by issuing a “notice of inspection” that requires the employer to produce I-9 forms for their employees and other supporting documentation within three business days. ICE agents then conduct an audit of the forms. If the inspection turns up violations, the employer will likely face civil fines. Employers have the opportunity to correct certain technical errors on their I-9 forms. An employer who is found to have knowingly violated the law may be subject to criminal prosecution as well as civil penalties.

In January 2018, the Justice Department increased its fine schedule for I-9 violations for those occurring after Nov. 2, 2015. Penalties for substantive and uncorrected I-9 violations range from $224 to $2,236 for each violation, depending on the percentage of noncompliant I-9 forms and whether the employer is a repeat offender. Penalties for knowingly hiring or continuing to employ an unauthorized worker range from $559 to $22,363 per violation.

BAL Analysis: Employers are encouraged to conduct a review and internal audit of their I-9 forms and practices to ensure that they are in compliance and that they are prepared in case of an audit by ICE. BAL can assist in the review process.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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