In the midst of an administration where change is one of the few constants, President Trump’s stance on illegal immigration has managed to remain consistent with his campaign battle cries. Since taking office, Trump reinvigorated the use of Form I-9 inspections in an effort to counter illegal immigration, pursuing employees unauthorized to work in the United States and employers who fail to comply with the rules and regulations governing Form I-9.
Not surprisingly, Trump’s 2018 offensive against illegal immigrants in the workplace has targeted several industries, including the construction industry. However, an employer need not operate in fear and may take steps to proactively ensure that it is Form I-9 compliant and can withstand an Immigration and Customs Enforcement raid violation-free.
During the Obama Administration, illegal immigration was a lower priority and while agencies such as ICE enforced immigration laws, the Obama Administration did not engage in enforcement campaigns similar to that of the current administration. However, the current crackdown on illegal immigrants did not come as a surprise to anyone, much less employers. Illegal immigration remained at the forefront of the President’s campaign platform, a platform that propelled him to victory in November 2016.
Not surprisingly, days after his inauguration, President Trump signed Executive Order 13768 titled Enhancing Public Safety in the Interior of the United States. This Executive Order enacted several measures to curb illegal immigration, including the following:
- the Order greatly broadened the types of immigrants who were a priority for deportation, including all undocumented immigrants;
- the President directed ICE to hire 10,000 new agents; and
- the Order revoked federal grants from sanctuary cities, however, the latter directive was subsequently found unconstitutional.
Within one month of President Trump signing Executive Order 13768, ICE began filling the 10,000 additional agent positions and increasing its immigration enforcement activities, including enforcement of Form I-9 requirements.
On January 10, 2018, during the pre-dawn hours, ICE raided 98 7-Eleven convenience stores across the U.S. in one of the largest coordinated multi-state raids in ICE history. While the raids only resulted in 21 arrests, the Trump Administration and ICE wanted to set a new tone for employers. In fact, on the day of the 7-Eleven raids, Thomas D. Hoffman, the Acting Director of ICE, ensured that ICE sent the message to employers loud and clear stating that “today’s actions send a strong message to U.S. businesses that hire and employ an illegal work force: ICE will enforce the law, and if you are breaking the law, you will be held accountable.”While many employers understand the seriousness of an ICE raid, they fail to understand the broad authority bestowed on ICE to conduct such raids, much less the process and/or their legal rights once ICE commences a raid. As with the 7-Eleven raids, ICE initiates a Form I-9 inspection by serving a Notice of Inspection. Surprising to many employers, ICE agents do not require a search warrant and must only serve the NOI.
After ICE serves the NOI on the unsuspecting employer, the employer has three days to produce Form I-9s for its employees and former employees as well as additional documents ICE may request such as payroll records, business licenses, lists of current and former employees and employee schedules. However, many employers waive their right to this three-day period and immediately produce the requested documents, a decision that could lead to the production of non-requested documents and/or additional violations.
Once ICE agents receive the requested documents, they thoroughly review such documents in search of any potential violations and/or suspect employees. If agents uncover technical violations, such as an unsigned Form I-9, then the employer has 10 days to correct the violation or else it becomes a substantive violation. Substantive violations, such as employing an undocumented immigrant, can result in a warning, monetary fine, imprisonment and/or debarment from receiving future federal contracts. When determining the appropriate penalty for substantive violations, ICE considers the following five factors:
- the size of the employer’s business;
- the employer’s good faith;
- the seriousness of the violations;
- whether any employees were unauthorized to work; and
- the employer’s history of previous violations.
While most employers cringe at the thought of heavy fines, construction employers who rely heavily on government contracts could suffer extreme financial strain and potential bankruptcy if debarred, especially since most debarments are for at least three years and prevent government contractors from subcontracting with a debarred company for any amount equal to or greater than $30,000.
Here is a cautionary tale of what happens when a construction company fails to take Form I-9 seriously. After reviewing the New York company’s Form I-9s and relevant documentation, ICE found 209 violations and sought a $195,649 fine. However, due to poor record keeping, it was impossible to determine the hiring and termination dates for 20 employees and in March 2017 the Office of the Chief Administrative Hearing Officer reduced the number of violations to 189 with a civil penalty of $151,200. While it is unknown whether the U.S. government debarred the contractor from future government contracts, the company is not currently on the U.S. government’s debarment list. Nevertheless, construction industry employers should take heed of this prime example of an employer’s failure to take Form I-9 seriously and ensure compliance with U.S. immigration laws.
As the old adage goes, the best defense is a good offense, and the same goes for employers seeking to avoid violations resulting from an unsuspecting ICE raid. The best way for an employer to prepare for a Form I-9 inspection is to ensure that it is not knowingly employing individuals unauthorized to work in the U.S. and ensure proper Form I-9 compliance. All employees who engage in human resources tasks related to Form I-9 should receive updated training and have the appropriate resources at their disposal. With respect to such resources, every employer, at the very least, should maintain the current version of the U.S. Citizenship and Immigration Services Handbook for Employers M-274, which provides detailed guidance for completing Form I-9.
There are many other best practices an employer may utilize to ensure Form I-9 compliance and build confidence in a positive experience when ICE comes knocking. If possible, complete Sections 1 and 2 in the same setting, and if not possible, then implement a reminder/notification system to ensure Section 2 is completed within three business days of the employee’s first day of employment. Employers may also create additional safeguards by enacting a secondary review policy requiring that another employee review Form I-9s immediately after completion to ensure accuracy and compliance. However, such policies are not substitutes for periodic internal audits of an employer’s Form I-9s and related documentation, as such audits verify compliance and proper retention of all documents ICE may request during an inspection.
When such audits reveal technical violations with Form I-9s, it is important for an employer to correct the error. However, an employer must correct the error and make a notation regarding the correction either on the Form I-9 itself or on an attached document. ICE understands that sometimes employers make mistakes, which is why ICE provides employers with the opportunity to correct technical violations before ICE reclassifies such violations as substantive violations. Therefore, it is imperative that employers never alter a Form I-9 to conceal an error. Not only is this fraud, but consequences for fraud far exceed those of the original technical violation.
While Form I-9 oversights are easily remedied, an employer may only remedy such errors if it is in possession of the Form I-9. Therefore, it is a best practice for employers to implement an organized filing system for Form I-9s and all related documentation to ensure the employer retains such documents for the period required by law. Maintaining an accurate record of hiring and termination dates is vital to the success of such system as well.
If construction industry employers follow the foregoing best practices, they should have little to fear from an ICE raid. However, if ICE serves an NOI, the employer should contact internal counsel or its employment law practitioner immediately and refrain from waiving its right to the three-day document production period, as it is important to ensure not only that the employer fully complies with the notice, but also that the employer does not produce more documents than required by law. Construction industry employers must take Form I-9 seriously to avoid being ICE’s next target.
