Elections have consequences, and one such example is with the Trump administration’s new immigration policies, which potentially affect security integrators – and all employers, for that matter.
One change is how businesses prepare and maintain a federal immigration form used by employers to verify the identity and employment eligibility of individuals they hire. This form, known as an I-9, or Employment Eligibility Verification, is required for most employers in the United States. It is intended to prove that employees of a business have the right to work in the U.S.
In the coming months, a surge in I-9 enforcement is expected. There are three reasons: First, the prior Trump administration increased audits from about 1,360 in fiscal year 2017 to nearly 6,000 in fiscal year 2018 and 6,450 in fiscal year 2019. COVID substantially slowed enforcement efforts; however, the trend was apparent in the first Trump administration. Second, campaign promises were made during the election to raid non-compliant employers, and this process has already begun. Third, a recent executive order directed intensified enforcement actions against businesses employing unauthorized workers.
Inevitably, all of this means more vigorous and regular immigration audits, unannounced job site visits, and stricter penalties for I-9 violations. Employers must take notice and must be prepared to prove that all of their employees have the right to work in the U.S.
What an Immigration Audit Looks Like
An I-9 audit occurs when U.S. Immigration and Customs Enforcement (ICE) serves an employer with a Notice of Inspection, requesting the employer to produce Forms I-9 for all current and terminated employees.
In the audit, ICE may request a list of employees’ names, most recent payroll, and names of contractors and staffing companies used by the employer. Records for terminated employees need to be maintained for three years after their hire or one year after their termination, whichever is later. Employers typically have three business days to comply, which is why it is important to be prepared.
ICE is looking for technical errors and substantive violations in the I-9 forms. Technical errors encompass missing or incomplete information on the I-9. Substantive violations include failing to complete the I-9 within three business days of the employee’s start date, failing to sign the form, failing to ensure the worker attests his or her citizenship or immigration status, failing to review and verify the proper immigration documents, and failing to reverify workers with expiring work authorizations.
If technical errors are not corrected, they could turn into substantial violations over time.
ICE typically takes a few months to conduct the audit, depending on the size of the employer and the number of issues encountered in the audit. If the audit is clean, ICE will issue a compliance letter. If the audit reveals errors or violations, ICE could issue various notices based on the circumstances, including fines, which can later be challenged or negotiated, including before an administrative law judge, if necessary.
Fines and Criminal Penalties for Non-Compliance
Employers who knowingly employ undocumented workers can face significant fines and other penalties, including possible revocation of business licenses and even imprisonment, to the extent the violations are part of a pattern or practice of knowingly employing unauthorized workers.
Financial penalties can be as much as $2,789 per violation for technical errors and up to more than $27,000 for knowingly employing an unauthorized worker. Business owners and human resource officers could face up to 10 years in prison and fines up to $250,000 for actions considered “harboring” undocumented workers.
While the security industry is not commonly known to employ undocumented workers – especially for positions already subject to strict background checks – certain industries such as agriculture, construction, and manufacturing face higher scrutiny.
Protect Your Business with Regular Self-Audits
To protect your company, you must conduct regular self-audits with the assistance of attorneys experienced in immigration law.
Errors or violations discovered in the auditing process must be corrected promptly - especially if there is any chance that ICE could later allege a pattern of non-compliance. Simple technical omissions can be corrected on the forms, and corrections should be initialed and dated.
If information is missing, and corrected during an internal audit, a good practice is to prepare a contemporaneous memorandum memorializing when the error was discovered, when it was corrected, and that it was resolved as part of a voluntary self-audit.
In addition to correcting errors, self-audits help to train personnel and improve corporate record-keeping procedures. They also enable employers to show that they complied in good faith, even if technical errors may be revealed in an ICE audit. This will help potentially reduce subsequent fines and substantially mitigate any risk of criminal prosecution.
While the political winds may change directions every few years, the obligation to comply with the law should not. Failing to comply always carries risks, regardless of who is in power; however, in these times, the likelihood of an audit is higher. Employers should be aware and prepared.
