Don’t Get Caught In an I-9 Sting; Your Obligations As an Employer

When it comes to immigration enforcement, no employer is immune from immigration scrutiny. An organization that ignores problems with its procedures in this area is risking ruinous fines and penalties. You have an obligation to hire only workers who are legally authorized to work in the United States.

And enforcement in this area is on the rise. Investigators are constantly finding new ways to root out potential law violations.

For example, investigators have sometimes gotten around the requirement of giving employers 72 hours’ notice that their I-9 forms are going to be inspected by showing up at an employer’s premises without actually asking for the I-9s. Therefore, the notice requirement isn’t triggered.

Instead, they immediately begin interviewing employees to find out if your immigration documentation processes are lacking in any way.

For these reasons and many more, you need to make absolutely sure you’re in compliance with the law.

Immigration Enforcement: Employer Obligations

What are your immigration enforcement obligations as an employer? Which situations can create employer liability?

There are several ways employers can run afoul of their immigration enforcement obligations:

• Knowingly hiring/employing a foreign national who is not work authorized;
• Continuing to employ an unauthorized foreign national once the employer has learned that he/she is not work authorized; or
• Failing to properly complete the I-9 forms, or making false statements on them.

To avoid immigration-related violations, you need to:

• Only hire workers with authorization. Failing to conduct this type of hiring practice will lead to an investigation or an audit.
• Always review your I-9s and other documentation.
• Be aware of discrimination concerns, especially those related to citizenship status and document abuse. (Document abuse may include requiring some groups to produce specific documents, and refusing to hire them if they cannot.)

Immigration Enforcement: What Are the Employer Penalties for Noncompliance?

What criminal and civil penalties do employers face if their immigration enforcement obligations are not met? Are there financial penalties for having incomplete I-9 forms?

The fines can add up quickly. Fines for an unauthorized worker range from $275 to $16,000 per worker. Even paperwork violations can add up in a hurry, at $110 to $1,100 for each I-9 form in violation.

Don’t miss our up-to-the-minute immigration compliance webinar, chock-full of practical tips and answers to your most pressing questions—this Thursday!

The Other Side of Immigration Enforcement: Immigration-Related Discrimination

With such high potential penalties, it’s almost understandable that employers may have the instinct to steer clear of hiring immigrants at all.

Obviously, though, this would result in unlawful discrimination against such individuals. There are four prohibited types of conduct under the Immigration and Nationality Act:

1. Citizenship status discrimination, such as treating someone differently because of his or her citizenship or having citizen-only policies.
2. National origin discrimination, which can manifest in several ways, such as English-only policies, refusing to hire based on national origin, or having a different hiring process based upon appearance.
3. Document abuse, which can take the form of requesting more or different documents than what is required for others.
4. Retaliation, such as terminating someone or refusing to hire someone over complaints of discrimination.

Employers have to strike a balance by only hiring authorized workers while being careful not to turn away someone for the wrong reasons. Tomorrow, an I-9 checklist that will help you make sure your procedures are both legally compliant and effective.

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