by Ed van Vianen and Denis Fitzgibbons, Fitzgibbons Law Offices, Casa Grande
The federal government imposes strict requirements on employers in verifying their workers’ employment eligibility – and tough penalties for employers who fail to comply.
In the normal routine of businesses, employers have a lot to worry about – including attracting customers, managing employees, making payroll, and following regulations. Work gets hectic, and employers may not pay close attention to their hiring practices.
As a result, workers may get hired without documenting their eligibility to work in this country. Because employers can be fined – and, in certain situations, criminally prosecuted – for employing unauthorized workers, it is especially important that employers confirm that their employment documents are in order.
Employer Responsibility In Accepting Documents
Federal immigration law requires employers to hire only U.S. citizens or aliens who are authorized to work in the U.S. and to verify the identity and employment eligibility of all individuals hired in the U.S. after Nov. 6, 1986. To document this verification, employers must use the Form I-9 (Employment Eligibility Verification) for all employees and retain the I-9s for inspection.
In gathering documents from persons for verifying employment authorization (e.g., birth certificates or unexpired passports) and identity (e.g., unexpired driver’s licenses or voter’s registration cards), employers are expected to accept documents that reasonably appear to be genuine and appear to relate to the persons presenting them. Employers are not expected to be document experts.
The Form I-9 for each employee must be retained for three years after the date of hire or for one year after the date employment ends, whichever is later.
ICE Inspection Notices and Subpoenas
More and more, we learn of employers in Central Arizona and elsewhere who are subjected to inspections by U.S. Immigration and Customs Enforcement (ICE) officials. The inspections are designed to ensure that employers are verifying the identity and employment eligibility of their employees.
To ensure compliance, an ICE agent or auditor can initiate an administrative inspection by serving an employer a Notice of Inspection (NOI) and subpoena (DHS Form I-138) that can compel the production of the Forms I-9. The subpoena is an important piece, as employers generally do not otherwise have to allow access to employee records unless the inspector has a valid warrant signed by a judge.
By law, employers have at least three business days to produce the I-9s. ICE may also ask the employer to provide supporting documentation that commonly includes:
- a copy of the employer’s payroll with detailed wage information for each employee;
- an employee list that shows each current employee’s full name, date of birth, Social Security number and hire date;
- and a copy of the employer’s articles of incorporation and annual report (if a corporation) or articles of organization (if an LLC) and business license(s).
Stiff Penalties for Violations
If the employer fails to produce the required records, or if the Forms I-9 contain discrepancies and are found to be not in compliance with the law, the employer has 10 business days to make corrections.
An employer may be fined for substantive and uncorrected technical violations. For example, monetary penalties for substantive violations, which include failing to produce a Form I-9, range from $110 to $1,100 per violation. Penalties for knowingly hiring and continuing to employ workers without gathering and retaining the required forms and records range from $375 to $16,000 per violation, with repeat offenders incurring penalties at the higher end of the range.
In determining penalty amounts, ICE considers five factors: the size of the business, good-faith efforts to comply, the seriousness of the violation(s), whether the violation involved unauthorized workers and history of previous violations.
To avoid serious consequences, employers must make sure that their Forms I-9 are on file and in order from the date of hire through the required document-retention period.
If your Forms I-9 or supporting documents are not in order, or if you are served with an ICE inspection notice and subpoena, you should contact your employment attorney or the Fitzgibbons Law Offices for assistance in complying with the federal government’s strict requirements.
Ed van Vianen and Denis Fitzgibbons are attorneys at the Fitzgibbons Law Offices in Casa Grande (520-426-3824.)