NEWS ANALYSIS
Amid the swirl of events following the ascendence of the second Trump presidency, the reversal of the previous administration’s immigration policy means employers need to be fully aware of how enforcement has intensified and how they should respond.
Although the President has said he expects that in the future some deported workers will be allowed to return to the United States to work in certain industries, including agriculture where foreign workers programs have existed for years, he remains committed to removing from this country many of the millions of people who were allowed to cross our borders illegally.
Most of the news coverage so far has been dominated by the Administration’s initial focus on removing immigrants who not only violated entry laws but also have criminal records involving gang membership and activities ranging from petty crimes up to and including drug smuggling and some of the most violent crimes.
In pursuit of this effort, the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security (DHS) has made use of every tool at its disposal—sometimes drawing the disapproval of the courts. Employers should plan for confronting this same level of zeal from ICE as time goes on.
DHS already has initiated a stepped-up program of I-9 audits in which government agents conduct a review of an employer’s employment eligibility verification compliance. This can be included as part of an onsite visit to an employer’s workplace, which also may include taking into custody and deporting undocumented immigrants found there.
Potential penalties can range from several hundred dollars up to about $2,800 for paperwork violations, and up to nearly $28,000 per violation when the employer is found by ICE to have knowingly employed an unauthorized worker.
“The most important step employers can take is to have legally compliant hiring processes in place and to perform a self-audit of their compliance with I-9 compliance with the assistance of legal counsel,” recommends attorney Francis P. Rojas of the law firm of Peters & Kappenman.
While it is probably a good idea for employers to consult with experienced immigration attorneys for legal advice and to keep up with the constantly changing enforcement picture, ICE already offers timely advice on how to perform a self audit in its online publication, Self Audits and Correcting Mistakes. (In addition, ICE supplies more general information and downloadable copies of the I-9 forms as well.)
Work Authorization Needed
ICE reminds employers on the I-9 form that the employee must attest to their employment authorization. The employee must also present their employer with acceptable documents as evidence of identity and employment authorization. It is the responsibility of the employer to examine these documents to determine whether they reasonably appear to be genuine and relate to the employee, then record the document information on the employee’s I-9 form.
Because immigration reform was a cornerstone of Trump’s campaign, Martin Kapenman, also with the Peters & Kappenman law firm, warns that employers can anticipate a sharp rise in I-9 audits. In anticipation of this happening, he stresses employers should make sure that the information on the forms they have in their files is clear and readable, that all of the applicable sections of the form are complete, and that the information entered matches the employer’s payroll records.
To protect themselves in advance of receiving any sort of attention from ICE, Kappenman says a review of the employer’s I-9 forms is needed to ensure that they are accurate and that all employees are authorized to work in the U.S.
Among the most common mistakes is failing to provide employees with the I-9 form to begin with, he notes. Other mistakes include:
· • Employers not bothering to complete the form when hiring family members or close friends.
· · • Employers not keeping the I-9 forms together in an organized fashion to allow prompt production upon request.
· • Employees not entering the correct name, other last names used (such as maiden name), address or date of birth.
· • Employees not entering their date of hire.
· • Employees not entering their business title, name or address.
· • Employees not signing or dating the attestation.
· • Employees not entering their Alien Registration Number after selecting that they are “A Lawful Permanent Resident.”
· • Employees not checking the correct boxes, or failing to check certain boxes required by the form.
· • Employers not completing Section 2 of the forms by the third business day after the date the employee began employment, or, if the employee is hired for three business days or less, at the time the employee started employment.
· • Employers not entering the document title, number or expiration date for the acceptable documentation presented.
· • Employers not completing Section 3 of the form until after the employee’s work authorization has expired.
Kappenman also says that employers should make sure that the information on the form is clear and readable, that applicable sections of the form are complete, and that the information that has been entered matches the employer’s payroll records.
