In 1986, Congress passed the Immigration Reform and Control Act (IRCA) in an attempt to control illegal immigration and the exploitation of undocumented persons. IRCA forbids employers from knowingly hiring individuals who do not have work authorization in the U.S. IRCA requires all U.S. employers to verify the employment eligibility of all employees by completing an Employment Eligibility Verification form (“I-9”) and by maintaining the forms and associated records strictly, thoroughly and in a timely manner.
Since the I-9 requirement was first enacted, enforcement has varied. In some years, the number of on-site inspections, audits and imposition of fines has been up; in other years, it has declined. At the present time, on account of disruptions arising from the Covid-19 pandemic, I-9 enforcement has deferred – but it has not disappeared. To the contrary, regular on-site audits and inspections of I-9’s and related documents are continuing and, in view of the steep fines and penalties which can be levied for non-compliance, every U.S. employer must know about, be familiar with and abide by the rules relating to I-9’s and Employment Eligibility Verification.
Sanctions for non-compliance – even relatively minor variance from the requirements – can result in severe penalties. In a recent case, United States v. R&SL, Inc., a court held a New Jersey door and window manufacturer liable for $1.5 million in fines, penalties and interest on account of failing to complete or properly complete Forms I-9. In the R&SL case, as in others, fines were assessed not only for failing to complete the forms, but also for failing to complete forms in a timely manner, failing to sign and/or date forms or failing to retain forms as required by law.
As part of their deterrence strategy, once U.S. immigration authorities find violations and non-compliance, they are quick to tally maximum fines against non-complying employers. Fines for 1-9 violations are substantial. For first time violations, civil fines may range between $252 to $2507 per individual violation. Additionally, for subsequent paperwork offenses from uncorrected errors and deficiencies, fines skyrocket to between $1,611 to $2,332 per violation.
These fines for paperwork violations are often levies in combination with other fines. For knowingly employing undocumented workers, the fines range from $627 to nearly $5,016 per violation. Subsequent offenses may range from $5,016 to $25,076. Though employers are not required to be document experts, they are required to exercise reasonable care in reviewing and accepting documents and will not be excused for unlawful hiring or paperwork violations when, under the principle of “constructive knowledge”, they knew or should have known that the employee was presenting fraudulent documents.
For companies with large labor pools and employment operations, it remains paramount to designate a person within the organization to act as the I-9 Coordinator. This person should be equipped to handle I-9 compliance and its challenges. Further, the I-9 Coordinator should collect the I-9s, verify employer eligibility, update I-9’s to account for expired documents and changes of status and be provided with the resources needed to maintain the company’s record in compliance with IRCA and other state and federal regulations.
PLEASE NOTE: As part of its response to the disruptions arising from the Covid-19 pandemic, ICE has announced a “Flexibility Policy” which excuses employers from inspecting and verifying original documents in-person. The Flexibility Policy applies only to employers who have employers working from remote worksites. As to those employers, the Flexibility Policy authorizes them to inspect the required documents remotely via e-mail, Zoom, video link, or fax, etc. and to then obtain hard copies of the documents within three business days of the paid employment. Though it may be extended, according to the most recent update, ** The Flexibility Policy remains in place until October 31, 2022. ** For more information, please click here.
At the Law Office of Matthew I. Hirsch, we can answer your questions regarding the law and regulations, and we can assist your company’s I-9 coordinator to implement best practices for I-9 compliance. In the event that your company is selected for an audit or work site inspection, we can provide both legal and practical advice on how to respond. There has never been a more crucial time to ensure your company’s full compliance with employment eligibility verification