Business Viewpoint: I-9 errors can be costly to businesses

By JOHN T. SYNOWICKI Business Viewpoint
Published: 6/2/2011 1:55 AM
Last Modified: 6/2/2011 7:27 AM

Since the passage of the Immigration Reform and Control Act in 1986, employers have been required to fill out an I-9 form for every employee they hire. Although the I-9 seems rather innocuous, there are serious ramifications for committing errors.

Many employers are unaware of the risks of I-9 errors, but the issue is emerging as more businesses find themselves subject to I-9 audits by Immigration and Customs Enforcement, or ICE, the police division of the Department of Homeland Security. With the federal government cracking down on noncompliant businesses, employers need to take immediate steps to get their I-9s in order or risk criminal and civil penalties.

The federal government has had the ability to audit employers since the act passed in 1986, though they rarely conducted audits until recently. However, beginning in 2009, ICE issued a memorandum directing its agents to begin targeting employers for failing to properly fill out the I-9.

Unfortunately for employers, this change occurred with almost no public notice, and ICE has begun to levy hefty fines and penalties against employers for even minor I-9 errors.

In 2010, ICE audited more than 2,600 companies and is well on its way to surpassing that number this year. The federal government sees I-9 audits as the linchpin to curbing illegal immigration. The rationale is that if it becomes too risky for an employer to take the chance of hiring an illegal immigrant, available jobs will fall in number and the incentive to come here illegally will also decrease.

ICE estimates that more than 99 percent of employers have errors on their I-9s, and the average I-9 has five errors. The rules are confusing because the Citizenship and Immigration Services issues the official regulations on the I-9 but a separate agency, ICE, enforces the regulations and issues its own unofficial regulations, which often contradict the official USCIS guidelines.

Employers are often left guessing about how to ensure I-9 compliance until ICE shows up for an inspection.

ICE will enforce criminal penalties against those running the company, along with civil penalties levied against the individuals and the company for failing to properly comply. Within the last year, several managers, CEOs and presidents have been sentenced to prison for hiring undocumented workers. One CEO got 27 years behind bars.

Additionally, ICE has levied heavy civil fines and sanctions against employers ranging from several thousand dollars to multimillion-dollar fines. ICE has also enforced civil fines against individuals, which in some cases exceeds $250,000 per person. Moreover, ICE has begun to bring discrimination lawsuits against employers who "over-document" their foreign-born legal employees.

Obviously, I-9 noncompliance is a corporate land mine that every company should be aware of.

In order to protect your business and yourself, there are a few things every employer should do.

First, every employer should have their I-9s audited by a corporate immigration attorney to assess any errors that have occurred, many of which are correctable.

After an attorney performs the company's self-audit, human resources personnel should be trained on how to comply with I-9 procedures, and the company should adopt an I-9 compliance policy. The compliance policy should emulate ICE Best Practices, which are the guidelines ICE suggests each employer should adopt.

Once those steps are finished, the employer should have an annual compliance audit performed for any new employees hired since the prior audit.

If an employer follows these steps, the risks of noncompliance will be greatly decreased, and individuals and the business are protected.


Original Print Headline: Federal authorities continue to punish employers for I-9 errors

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John Synowicki, an attorney with GableGotwals, represents companies in a wide range of civil litigation issues. He is a 2010 graduate of the Vanderbilt University Law School in Nashville, Tenn. He also holds a bachelor's degree in Spanish, history and international studies from Dana College in Blair, Neb.

The views expressed here are those of the author and not necessarily the Tulsa World. To inquire about writing a Business Viewpoint column, email a short outline of the article to Business Editor John Stancavage at john.stancavage@tulsaworld.com. The column should focus on a business trend; the outlook for the city, state or an industry; or a topic of interest in an area of the writer's expertise. Articles should not promote a business or be overly political in nature.

By JOHN T. SYNOWICKI Business Viewpoint

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