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Businesses Beware: I-9 Audits at All time High By: Kripa Upadhyay

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As of March 29,2012, ICE had notified 500 businesses "of all sizes and types" to turn over I-9 employment-eligibility forms and other documents for audits.


Since January 2009, the Obama administration has audited at least 7,533 employers suspected of hiring illegal labor and imposed about $100 million in administrative and criminal fines--more audits and penalties than were imposed during the entire George W. Bush administration


Criminal Prosecutions


While Immigration and Customs Enforcement (ICE) in the Bush administration locked down buildings and herded workers into interrogations and ultimately onto planes for removal, the Obama ICE has increased administrative fines and paper audits--after which employers are asked to dismiss unauthorized workers. Companies could face criminal prosecutions even after workers found to be present in the U.S. illegally or lacking authorized work documents have been
fired.


Referred to as "silent raids" because ICE investigates the employer without the employer's knowledge for months before serving a notice of I-9 inspection on the unsuspecting employer, these audits can prove to be financially disastrous for employers because the consequences for the employer may be much more serious, including criminal and civil liability.


 The Obama administration's focus has been on auditing and investigating employers to
determine if they are satisfying the Form I-9 requirements and are knowingly or
unwittingly employing illegal workers. The fines for simple Form I-9 violations
range from $110 to $1,100 per violation, with the higher range applicable to
employers with a higher percentage of mistakes. Employers with large workforces
that fail to properly manage the Form I-9 process can face fines of hundreds,
or even millions, of dollars. Employers and their managers also can face
criminal prosecution if they deliberately neglect their legal responsibilities
in this area.


Inter-Agency Cooperation


ICE is now cooperating with other government and enforcement agencies to gather information from multiple sources and to target joint enforcement efforts. At fusion centers which have been established in various parts of the country, ICE auditors and tax auditors are in one place to share
resources, leverage information and pursue top-to-bottom audits.


Employers being investigated for violations of wage and hour laws have ended up facing much harsher criminal and civil liabilities that stem from I-9 violations as investigators have been cross-trained to recognize what might be violations of laws other than the ones they enforce.


Technical Violations:


Although employers may have made a good faith effort to comply with I-9 requirements, and have requisite paper work in order, "minor" technical violations could still result in hefty fines. In September 2010, ICE conducted an audit of clothing giant Abercrombie & Fitch, and although no
illegal workers were found to be employed, the company was still assessed fines
of $1 Million due to "numerous technology related deficiencies" found in their
electronic I-9 verification system.


What's a business to do?


The simple answer would be to ensure that the HR personnel or the hiring authority is trained in the basics of I-9 compliance and knows to ask for the relevant documents from every single employee. It is also well worth the monetary investment for a business, no matter the size, to
have an experienced Immigration attorney conduct a periodic I-9 review to
ensure that all requisite forms and documentation are accurate and maintained
in the proper manner.

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