Immigration Enforcement’s Impact

OP CIVIL

By Montserrat Miller

The U.S. Department of Homeland Security (DHS) is ramping up immigration enforcement nationwide, which will soon include increased worksite enforcement. This means American businesses must adapt to new operating conditions. As with any new norm, smart leaders must know how the federal government’s actions will affect their workforce, and ultimately, their bottom line.

Over the years worksite enforcement has taken different forms. What remains to be seen is whether the Trump administration will define enforcement like President Bush, with large worksite raids; or like the Obama administration, which engaged mostly in “paper investigations” when it came to worksite enforcement.

Construction industry worksites are susceptible to undocumented workers being part of the overall workforce. In addition to the threat of raids, business leaders should be thinking about what a government worksite raid or investigation could mean in terms of potential labor shortages, negative media as well as compliance-related penalties and costs in the event worksite raids begin occurring more frequently around the country.

To protect business interests, the construction industry should consider how they will address the following scenario, which details how business leaders might manage a visit by DHS agents to a jobsite:

Your company is the subject of a worksite investigation. Two Immigration and Customs Enforcement (ICE) agents from Homeland Security Investigations arrive at your worksite unannounced and present your project manager with a Notice of Inspection (NOI) and/or an administrative subpoena demanding to review your company’s Employment Eligibility Verification forms, known as the Form I-9.

The law affords your company three business days to comply with the request to turn over the Forms I-9 and any other documentation requested in the NOI or subpoena. As part of the investigation, ICE provides the company with a Notice of Suspect Documents for certain employees alleging that they are not authorized to work in the United States.

Once ICE determines that an individual is not authorized to work in the United States there is no grace period for their continued employment. The agents may provide the company with a period of time — 10 business days — to take appropriate action to resolve what the government believes to be the apparent employment of unauthorized workers. Aside from that, there is no grace period as the law requires that employers immediately terminate anyone not authorized to work or run the risk of being charged with the penalty of continuing to employ an individual in the United States knowing they are not authorized to work. Depending on the number of employees affected by this type of investigation, you may encounter an immediate gap in your workforce.

How do You Protect Yourself?

Compliance begins with reviewing the company’s Forms I-9. A business subject to an ICE investigation will be required to turn these forms over for inspection. The law requires that employers present a Form I-9 for all current employees hired after 1986, the year the requirement went into effect. Federal law states that employers must document and maintain each new hire’s identity and work authorization on the Form I-9. In addition, employers are required to re-verify the work authorization of those with a temporary work visa (e.g., H-1B or H-2B workers) prior to expiration of their work authorization. This requirement applies to all workers and all businesses in the United States.

In 2014, M&D Masonry, Inc., a Georgia masonry company, was fined $228,300 by Homeland Security for failure to properly complete and present Forms I-9 for its employees. The investigation began after the federal government learned of possible misconduct by the company in a local newspaper article about their hiring practices. It is important to note that investigations of companies are often not random, but rather driven by tips or leads, or part of an overall enforcement strategy pushed down to local field offices by Homeland Security Investigations.

Companies can be charged with paperwork violations related to Form I-9 as well as penalties for the unauthorized hiring of undocumented workers or the continued employment of undocumented workers once their work status is known. A major benefit to proper completion of Form I-9 is that companies that properly complete and retain Forms I-9 and are then subject to a government investigation have a good faith defense to allegations that the company employs individuals not authorized to work in the United States because they complied with the paperwork requirement. Therefore, proper completion of Form I-9 can lead to a good faith defense against allegations of knowingly hiring an unauthorized worker.

Penalties for non-compliance can be costly. Failure to complete or properly complete Forms I-9 within three business days of a new hire and/or failure to present Forms I-9 during an investigation can lead to penalties ranging from $216 to $2,156 per form. Separately, violations for knowingly hiring someone not authorized to work in the United States, or continuing to employ someone knowing they are not authorized to work range from $539 to $21,563 per violation. Finally, criminal penalties can result from engaging in a pattern or practice of hiring, recruiting or referring unauthorized aliens for a fee.

Ultimately, the best defense against a government investigation is a good offense. Start by conducting an internal audit of the company’s Forms I-9 using experienced outside immigration counsel. An audit gives employers the opportunity to correct certain form deficiencies, prepare Forms I-9 if they are missing, and better understand what human resources professionals are doing (or not doing) to ensure compliance with federal law.

Montserrat Miller is a partner in the Washington, D.C. office of Arnall Golden Gregory LLP. She counsels and defends companies regarding their immigration-related hiring practices and compliance with the government’s Form I-9 and E-Verify employment eligibility verification requirements, including conducting internal I-9 audits and representing companies subject to a government investigation. She can be reached at 202-677-4038 or Montserrat.Miller@AGG.com.

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