Worksite investigations by the Immigration and Customs Enforcement Agency (ICE) have continued to put a freeze on businesses that hire undocumented workers. In an effort to reduce the employment of illegal workers, ICE agents are inspecting businesses' I-9 forms — especially those in sectors known to employ undocumented workers — to ensure that all staff are legally authorized to work in the U.S. ICE aggressively pursues employers who knowingly hire unauthorized individuals and who abuse the immigration system for their personal gain.
As of April 2011, more than 1,000 audits were reported to be in progress across the nation, a record-breaking number according to ICE officials. A couple of the more high profile cases involve McDonald's restaurants in Savannah, GA, where it was discovered that managers had stolen the identities of U.S. citizens and sold them to their illegal alien employees. The managers are currently facing federal criminal charges for stealing identities and having victimized unknowing U.S. citizens. Most recently, Chuy's Mesquite Broiler chain in California and Arizona came under fire when an ICE investigation led to the detainment of 40 illegal immigrants and the arrest of the owners, who also face federal charges.
Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), all U.S. employers are required to have Form I-9 — Employment Eligibility Verification — on file for each newly hired employee, citizen and non-citizen alike. The employer must complete this form, which verifies the employment eligibility of each newly hired individual, within three business days of each employee's first day of work. Failure to do so can result in significant civil and criminal penalties.
Likewise, employers can err in asking for more proof than the law requires. One such example occurred last year at Morton's Restaurant in Portland, Oregon. Morton's required two work-authorized non-citizens to present more documents than was legally required. The two workers presented a List B and List C document. The List C document that was offered was a valid Social Security Card, but the company demanded that because the applicants were not U.S. citizens, they needed to produce additional documents to prove their work authorization. Ultimately, Morton's had to provide full back pay of $2,880 and $5,715.62 to the two employees, pay a penalty of $2,200, and agree to receive I-9 training.
To ensure you're following best practice employment procedures, you should enact the following steps:
Perform internal audits regularly to ensure that I-9s have been completed properly for your workforce. It may also demonstrate a good faith effort to remain compliant, which could spare you serious penalties in the event of a government audit.
Avoid employment practices that are considered discriminatory. Employees must be treated equally regardless of their citizenship or immigration status, national origin or native language. Many well-intentioned actions can be considered discriminatory. For example, employers may not ask to see work authorization documents before hiring on the ground that someone seems foreign or is not an American citizen.
Establish a tickler system to alert you to fast approaching deadlines for I-9 completion as well as approaching work authorization expiration dates.
Provide I-9 training for your staff, including all human resource personnel and other employees.
Appoint a compliance officer. Task one individual who has ultimate responsibility for I-9 completion and the authority to speak with ICE, should the need arise.
Michael J. Wildes is managing partner of Wildes & Weinberg, an immigration law firm with offices in New York City and Englewood, NJ, and has counseled such popular New York restaurants as Tavern on the Green, Dallas BBQ, Mr. Chow and the Russian Tea Rom. E-mail him at Michael@wildeslaw.com or call at 212-753-3468.