For the last 30 years or so, the federal government has primarily enforced its immigration policies and laws by forcing employers, under the threat of criminal prosecution or exorbitant, business-crushing fines, to ensure that they hire only applicants with acceptable documentation of their eligibility for employment.
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The failure to properly complete and maintain I-9 forms can put companies in Nevada and nationwide in legal jeopardy. Rather than arresting and deporting unauthorized immigrants, the government finds it easier and more effective to arrest or fine employers that hire undocumented workers, no matter how unwittingly.
Donald Trump’s vow to crack down on illegal immigration has resulted in the opposite of his endless promises of “job creation.” Employers in Nevada and around the country are being fined and imprisoned and have begun shutting their doors to employees, including American citizens and others who are lawfully authorized to work here.
It Began with IRCA
Before 1986, it was the government’s job to control immigration and foreign travel into the United States. Back then, the federal government attempted to tackle the problem of undocumented immigrants by arresting and deporting individuals who were in the United States “illegally” one by one.
Finding the traditional method of enforcing immigration law inefficient, the government determined that employers should bear the burden of enforcement. With the passage of the Immigration Reform and Control Act (IRCA), the task of ensuring that employees hired to work in the United States are authorized to do so was placed squarely on the already overburdened shoulders of American employers.
Today, not only do employers in the United States have to recruit, hire, and train employees, market their wares, run their business at a profit, and pay their federal, state, and local taxes, but they are also responsible for assisting the government in the seemingly impossible task of enforcing the country’s immigration laws. It’s a task that, if not perfectly performed, can cause an employer to be imprisoned or fined into poverty at the federal government’s sole discretion.
ICE Shifts to Audits and Raids
Since the passage of IRCA, the pressure placed on U.S. employers has become increasingly overbearing and burdensome. In 2009, U.S. Immigration and Customs Enforcement (ICE), the enforcement arm of U.S. Citizenship and Immigration Services (USCIS), itself a division of the U.S. Department of Homeland Security (DHS), shifted the focus of its worksite enforcement strategy from arresting employees to arresting employers.
According to an ICE statement, its rationale was based on the view of the DHS and USCIS that hiring undocumented immigrants gives “unscrupulous employers a competitive edge over law-abiding businesses that play by the rules and pay prevailing wages and benefits.”
In an effort to curb the benefits “unscrupulous” employers were gaining by simply hiring folks who needed work and were willing to do it, ICE announced that its number one priority would be to target employers that knowingly employ unauthorized foreign nationals. The primary enforcement tool used by ICE in 2009 was “the I-9 audit.” During those fairly rare audits, forensic auditors reviewed the targeted company’s I-9s, looking for both technical and intentional violations of immigration law. As a result of its I-9 audit effort, ICE filed actions against some well-known companies and brought them to their knees.
During the Bush administration, overt worksite raids were commonplace, and the disruption for employers was immense. Raids temporarily shut down operations as employees were arrested, leaving employers short-handed. Many times, raids resulted in civil and criminal charges for employers that either allegedly knew their employees were undocumented or didn’t have complete documentation, leading prosecutors to conclude that they had failed to take the necessary steps to verify workers’ documented status.
The arrests and corporate destruction rose to such a level by 2011 that noted economist Lew Rockwell wrote, “In order to eliminate every possible job opportunity for immigrants, the Obama administration appears willing to jail and terrorize vast numbers, destroying the commercial life of major swaths of the country. This is a catastrophic plan that amounts to a fundamental attack on liberty, and the nationalization of the service industry.”
‘Boss-Buster in Chief’
In 2013, U.S. Representative Debbie Wasserman Schultz (D-Florida) called President Barack Obama the “boss-buster in chief” for going after employers that hire undocumented workers. In the first 5 years after its strategy shift, ICE reported that worksite investigations had resulted in criminal indictments against 868 management officials nationwide and 787 convictions. That is to say, employers were jailed for opening their doors and serving the public, and put away for creating jobs and supporting employees’ livelihoods and families.
The poster child for the Obama immigration initiative was Mark Evenson, the owner of several Chuy’s Mesquite Broiler restaurants in Arizona and California. In a show of extreme force for the benefit of local TV cameras, dozens of federal agents from ICE and the IRS raided 14 Chuy’s in Arizona and California on April 20, 2011, carting away boxes of “evidence.”
Meanwhile, another dozen federal agents in jackboots and bulletproof vests swarmed Evenson’s home with guns drawn and took the paraplegic owner of Chuy’s away handcuffed in his motorized wheelchair as his wife and daughters looked on in horror.
Evenson and his son were charged in a 19-count indictment with knowingly hiring hundreds of illegal immigrants to work in their restaurants’ kitchens. Evenson’s son ultimately pleaded guilty on two of the 19 counts, signing a plea agreement that ominously stated he set out to “defraud the United States for the purpose of impeding, obstructing and defeating, by deceitful and unlawful means, the lawful government functions of the [IRS], in the ascertainment, computation, assessment, and collection of [FICA] taxes.”
What was the real crime? Some said what the Evensons did was hire people who didn’t have the proper bureaucratic forms filled out for them. That’s all. Yet they faced prosecution by the government under the guise of immigration enforcement and cracking down on “illegals.”
In many cases, the workers themselves were untouched by any of the raids. The employers, not the employees, were being attacked.
ICE didn’t spend its time rounding up workers who knowingly accepted employment without the proper documentation or presented their employers with forged identification, which would be bad enough. Instead, its aim was to criminally prosecute the business owners themselves, the people who were not only providing jobs but also producing goods and services.
Kinder, Gentler Tactics?
Despite Donald Trump running as a probusiness presidential candidate, nothing has changed under his administration. Rather than growing record numbers of jobs as the president routinely professes to do, his vow to crack down on illegal immigration is having the opposite effect, and his administration’s tactics aren’t much different from the previous administration’s.
Recently, a client of mine, a hardworking economics major who honed his skills and his entrepreneurial spirit in Nevada’s hospitality industry, underwent an ICE audit. He’s now at risk of losing the company he mortgaged his home to create 10 years ago, an industrial landscaping company that grew from two hardworking brothers into a company that employs more than 130 people.
My client received an innocent-looking letter (a form of subpoena called a “Notice of Inspection,” or NOI) that directed him to gather his I-9s and take them to the local ICE office in Las Vegas within 3 days. The form informed him that he could waive the 3-day period, but he called me instead—thank goodness.
When my client eventually attended his meeting with ICE, the forensic auditor attempted to put him at ease by telling him that the kinder, gentler ICE tactics of the current administration make the audit process much easier. She noted that ICE no longer busts into businesses at 7:30 a.m. with guns brandished to confiscate documents and hard drives; the agency just sends letters and asks for employers’ cooperation.
However, she also mentioned that the fines for incomplete or inaccurate I-9s range from $250 to $5,500 per document (that is, per employee), and if the government concludes that an employer knowingly or willfully hired undocumented workers, the fines double, and criminal penalties can be imposed.
A quick mathematical calculation led my client to believe that he could soon be out of business if the government imposed a high six-figure fine on him for being “unscrupulous” enough to hire the only employees he could find who were willing to shimmy up scorpion-infested palm trees in the Las Vegas heat.
Immigration laws may make people feel safer and more secure, but the government’s enforcement tactics make all business owners unsafe and insecure. Ultimately, that amounts to something like a cold shower for people’s entrepreneurial instincts.
What You Can Do to Lessen Your Liability
To avoid the potentially devastating results of an ICE audit, employers should undertake a self-audit and review employees’ I-9s before the federal government sends its calling card. Through the self-audit process, you can make many corrections without the pressure of a looming government audit.
Also, you should train key staff members to recognize that if your business receives an NOI, you have at least 3 days by law to provide your I-9s to ICE, and you can generally get more time to comply by asking for an extension. That time should be used to review and make as many technical corrections as possible to your I-9s, thereby reducing the amount of any potential fines.
However, any corrections should be made under the direction of trained professionals who can distinguish the difference between a correctable technical violation and an uncorrectable substantive violation and guide you in making the permissible changes.
Finally, you should have a compliant I-9 retention and destruction policy. The law requires you to retain I-9s for either three years after the date of hire or one year after the date of termination, whichever is later. The government can audit any I-9 in your possession, and there’s no reason for keeping I-9s longer than legally necessary.
Bottom Line
Immigration-related employment issues are some of the most complex, misunderstood, and emotional issues employers face. But you must come to terms with the importance of compliance or be prepared to pay the consequences.
Accordingly, you would be wise to engage legal counsel or other trained professionals to get your house in order before ICE comes calling because the agency’s new paper dragon has as many teeth as any old-fashioned raid.
Deanna Forbush, editor of Nevada Employment Law Letter, can be reached at dforbush@clarkhill.com.