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Carl Shusterman's Immigration Update

Employers Caught Up In a Catch-22

Rate this Entry The U.S. Immigration and Customs Enforcement (ICE) announced today that it served Notices of Inspection upon 652 businesses around the country. Compare this with the 508 businesses which received Notices of Inspection in fiscal year 2008.

An ICE spokesman told the press: "Part of the strategy is to show businesses that we mean business."

The new Obama policy substituting audits for raids, and civil penalties on employers rather than criminal penalties on workers is a step in the right direction. It may even set the stage for comprehensive immigration reform by showing that the administration is serious about immigration enforcement.

We link to the ICE press release and the news story from our "Employers' Immigration Guide" at

Notices of Inspection are served on employers to compel them to surrender their I-9 forms to the government. The I-9 form verifies the identity and the employment authorization of each employee hired by the company.

However, employers do not have the authority to question the legitimacy of the documents that are presented to them unless the documents are obviously false. An employer who attempts to do more risks great sums of money for violating the document abuse and/or anti-discrimination laws. Ask Jose Sanchez for more or different documents than Joe Smith, and you are asking for trouble, big trouble. See our article "INS vs. INC." at

The truth is that most "undocumented" workers are ready, willing and able to produce the required documents when an employer presents them with an I-9 form.

So, in the next few weeks, when ICE inspects the I-9 forms of many thousands of employees who work for these 652 companies, the agency will learn (No big surprise.) that thousands of these documents are either false or belong to others.

The workers will lose their jobs, but if history is any guide, they will simply pick up and start looking for new jobs.

The employers can not be fined unless their I-9s were done improperly or not at all. In most cases, they will receive fines for being sloppy, not for being "unscrupulous". Of course, if an employer has actual knowledge that an employee is illegally present in the U.S., he could face criminal penalties, but rarely does ICE have enough evidence to press criminal charges.

Earlier today, I was interviewed regarding this subject by a newspaper reporter. As a former INS prosecutor, I have represented quite a few companies facing I-9 audits.

I spoke with one of my former clients today. His company underwent an I-9 audit when they applied for labor certification for three undocumented workers. I remember meeting with the INS investigator and handing him a pile of I-9 forms. The INS could have subjected the employer to many thousands of dollars in fines. Instead, we agreed to enroll the employer in what is now called the "E-Verify" program, and the government agreed to waive all fines.

However, the employer lost many of his most valuable employees, and it took years for the business to recover. How about the employees? They ended up working for his competitors.

Who came out ahead in the end? No one as far as I'm concerned.

Our broken immigration system will not be fixed by penalizing employers who are trying to abide by the law, and forcing many of their workers to find new jobs. If there was ever a time to amend our laws to conform with the laws of the free market, it is now.

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Updated 12-02-2013 at 05:34 PM by CShusterman


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