Worksite Enforcement Comes of Age
This article appeared in the Special Focus: Employment Law section of Association TRENDS, June 2014, and is reprinted with permission of the publisher.
The Immigration Reform and Control Act of 1986, or “IRCA,” which made it unlawful for employers to hire or continue to employ persons not authorized for employment in the United States is approaching its thirtieth anniversary. The law imposed a requirement on virtually all private employers to verify that each newly hired employee is authorized to accept employment in the United States, and mandates completion of a Form I-9, together with a review of certain specified documentation verifying both identity and work authorization, within the first three days of the employee's date of hire. Employers who fail to complete the forms, complete them halfway, or make mistakes in entering the required information potentially face civil penalties ranging from $250 to $1100 per violation.
Employers unfamiliar with these requirements in 2014 are traversing very dangerous ground. Increased activity by Immigration and Customs Enforcement (“ICE”), the enforcement arm of the Department of Homeland Security, has resulted in substantial recent penalties against employers for failing to properly complete and maintain I-9 forms and the employment of unauthorized aliens, including a penalty of $5,100 against a “mom & pop” business, almost $15,000 against a small business in California, and more recently, a $137,000 penalty against a golf course, currently pending further review.
Common violations include the failure to fully complete Section 2 of the form with information from the required documentation; accepting expired or improper documentation; failure of employee to indicate work status and/or to sign form; the failure of the employer to sign the form where required in Section 3 or to complete verification within three days of hire. Although ICE encourages copying of documentation, copying is not a substitute for completing the form and will not result in avoidance of penalties.
IRCA compliance, however, is not the only area of increased activity. The Fraud Detection and National Security (FDNS) Directorate, responsible for enforcing the H-1B program, is actively pursuing site visits in order to tamp down on “fraud” within the H-1B program. FDNS inspections are also expected to begin post-adjudication domestic L-1 compliance visits as well as on-site inspections of J-1 intern and trainee host sites.
In any of these situations, the inspectors may ask to speak with responsible supervisors, employees, trainees, and interns, and to inspect physical facilities. Employers can be expected to produce documentation, including required Forms DS-7002 for J-1 programs, and the required Public Access File for H-1B employees. In the latter case, employers should expect confirmation that wages are being paid at the rate specified in the petition, that H-1B employees receive commensurate benefits with U.S. workers, and that the H-1B worker has been given a copy of the Labor Condition Attestation (“LCA”) which sets the required wage rate.
The complexity of the issues presented by immigration compliance and the hiring of a foreign nationals are obviously greater than the thumbnail sketch presented here. There may also be penalties for discriminating against permanent residents and citizens by requiring documents beyond that permitted by IRCA, as well as penalties – perhaps even criminal sanctions – for the knowing hire or harboring of unauthorized workers. As with anything involving strict government enforcement, therefore, a compliance plan, with regular audits, supplemented by knowledgeable legal counsel, is a necessity to avoid potential fines and penalties.