Employment verification: then and wow!

• Author: Carson, Giselle

A concerned client called because Immigration and Customs Enforcement (ICE) agents conducted an I-9 investigation. The agents found missing I-9s and errors on some I-9s, and requested an investigation into some employees who might not be authorized to work. ICE issued a notice of intent to fine for over $25,000 for 1-9 errors. Several months later, the same client called and was very distressed because ICE agents were surrounding the business. The receptionist was given an extensive search warrant; ICE demanded that employees stop work and assemble in the cafeteria. There was panic and chaos. The agents arrested managers and employees and seized computers and paperwork.

Recent ICE Enforcement Actions

The above scenario is real and happening all over the country. For most of the 20 years since the passing of the Immigration Reform and Control Act of 1986 (IRCA), (1) the government's enforcement primary methods included education and training with only minimal fines. Currently, ICE's continuing aggressive enforcement employment verification strategies include significant civil and criminal charges and devastating raids. Recent ICE actions include:

* Mississippi -- In August 2008, 595 undocumented workers were arrested at a manufacturing facility during a joint immigration enforcement action conducted by ICE and the Department of Justice. ICE special agents executed a federal criminal search warrant for evidence relating to aggravated identity theft, fraudulent use of Social Security numbers, and other crimes.

* California -- In June 2008, ICE agents executed a search warrant as part of an investigation targeting a locally owned company that provided contract workers to the farming industry in the Imperial Valley area. ICE agents arrested two foremen on criminal charges and 32 employees on administrative immigration violations.

* Iowa -- In May 2008, ICE agents arrested 389 undocumented workers at Agriprocessors, Inc. Two supervisors were arrested and charged with crimes including aiding and abetting aggravated identity theft and encouraging aliens to reside illegally in the U.S. The operation took place in collaboration with the U.S. attorney's office and law enforcement agencies.

* Florida -- In May 2008, 25 undocumented persons working at the Lee County Sheriff's Office were arrested by ICE agents following a tip from the sheriff's office.

* New York -- In February 2008, a grand jury returned a six-count felony indictment against five managers of a division of IFCO Systems North America (IFCO). The indictment charged the defendants with engaging in a conspiracy to harbor illegal aliens, to encourage and induce illegal aliens, and to transport illegal aliens.

All employers, regardless of whether they hire or sponsor foreign nationals, should be aware of the current trend in employment verification. Department of Homeland Secretary (DHS) Michael Chertoff has repeatedly said that DHS "is going to continue to keep pressure on and pursue cases against employers."

The Statutory Basis for These Actions

These actions are enforcement of IRCA, enacted to attempt to curtail illegal immigration. Designed to reform, update, and expand U.S. immigration law, IRCA made it unlawful for a person or an entity to knowingly hire, recruit, refer for a fee, or continue to employ unauthorized aliens. (2) For the first time, IRCA required employers to verify that employees were authorized to work through the use of Form I-9, Employment Eligibility Verification Form (I-9).

To address the fear that employers would discriminate against individuals who sounded or appeared "foreign," IRCA also prohibited employers from discriminating against any individual (other than an unauthorized worker) in hiring and firing on the basis of national origin or citizenship status. (3)

Failure to comply with IRCA's provisions can result in significant civil and criminal penalties, injunctions, cease and desist orders, and negative publicity. Employers can face penalties for failing to properly complete, retain, and/or make available for inspection the I-9 form (even if the employee is found to be authorized to work); knowingly employing, or continuing to employ, unauthorized workers; engaging in unlawful immigration-related discrimination; and knowingly participating in document fraud.

On the next page is a summary of the monetary civil fines that can be imposed under IRCA for violations occurring after September 29, 1999: (4)

IRCA provides for criminal sanctions when an employer is found to have engaged in "a pattern or practice" of knowingly hiring or retaining an unauthorized worker. (5) Employers may face penalties up to $3,000 per unauthorized worker and/or up to six months of imprisonment. (6)

Employers are entitled to an administrative hearing before an administrative judge where the government must prove its allegations by a preponderance of the evidence. The administrative decision can be appealed.

IIRAIRA

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), (7) which amended some of the IRCA provisions. IIRAIRA requires a showing of intentional discrimination in a case against an employer for alleged document abuse (asking for more or different...