I.C.E. Storm in the Forecast – I-9 Compliance and Employer Liability

There are times when the simplest of tasks can create the biggest of problems for employers. We have been seeing such a phenomenon occur over the past three to four years in the area of I-9 compliance. I-9 audits, or raids, no longer encompass searches for illegal workers with the goal of deportation. Now, they heavily focus upon the Form I-9 itself, as well as the employer’s role in employing or retaining illegal workers. Both state and federal governments view employers as the “root cause of illegal immigration.”

Auditors evaluate these forms, seeking strict compliance. Indeed, on the federal side, the U.S. Immigration and Customs Enforcement agency guidance to its field auditors emphasizes using the I-9 audit process, inter alia, to “advance criminal cases.” As strict compliance is not often the reality, the government has issued a record number of civil and criminal penalties against employers who fail to properly complete, maintain and, where necessary, update I-9 forms. Employers also face liability for employment of illegal workers. Plainly, our current administration has shifted the focus of immigration in the employment sector completely. Instead of seeking to remove illegal workers from our U.S. companies, the federal government is focused upon punishing employers for their failure to comply with U.S. immigration laws. Punishment often comes in the way of heavy fines. The criminal statue also threatens imprisonment.

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