Immigration, illegal and otherwise, has gotten a lot of coverage lately here in Scottsdale, Arizona and throughout Arizona and the nation. No matter how you draw your battle lines on the myriad of immigration issues, there is one very real problem that businesses have largely ignored – the current enforcement of immigration laws by focusing on the employer. While it seems to many that the Obama administration is doing nothing to help Arizona and the country enforce immigration laws, it is a very real fact that enforcement is happening. While most in this state are calling for enforcement at the individual level, keeping illegal immigrants out, the enforcement is occurring at the employer level.
The fact is that there has been a ten-fold increase in the number of audits by Immigration Customs Enforcement (ICE) under the Obama administration. It is the stated policy of the Obama administration to enforce immigration laws by focusing on ICE audits of employers’ I-9 records, and they are coming down hard.
In the past year, ICE has conducted 3,500 audits in all parts of the country and in all industries. $54.8 million of fines have been levied against employers in the past year. Each separate error can cost the employer $1,100 in fines, $3,500 – $16,000 per illegal worker, and $3,200 – $16,000 for each offense of unlawful discrimination – plus an injunction. The errors occur often, and they often occur in large numbers.
According to The Brenda J. Smith Company, immigration law consultants, the failure of business to comply with I-9 requirements is costing employers of all sizes. Employers large and small have been fined in the past year including:
– $1.1 million to Abercrombie and Fitch
– $2 million to Hoover Vacuum
– $60,000 to regional New England Blueberry Grower
– $1 million to small manufacturer in Washington state
– Undisclosed fines, plus government taking of business and property for well-established 31 year old bakery/restaurant The French Gourmet in San Diego
This is a hot issue for all employers, not just large ones. Is your company next?
Owners are losing their businesses. Under an obscure section of RICO the government has begun taking business and associated property. Recent cases involve former California businesses.
Owners are going to jail. In 2010, 144 company owners and managers were prosecuted for immigration violations. Charges range from knowingly hiring illegal workers to human smuggling.
The employer focus will likely continue, with an increase in use of E-Verify, the revitalization of the IMAGE program, and the hiring of new ICE agents and opening new ICE offices charged with making I-9 inspections.
As a business owner or manager within one, what do you need to do? There are four questions that I now ask all of my clients to save them from fines and keep them out of jail.
- How are they storing I-9 files? They must be in a separate location from personnel files – not just in a separate file folder, file drawer or probably room. The location must be secure.
- How long are I-9s retained for all workers including current and past employees? The three years/one year requirements are often confused. Keep them for up to three years from hire date, or one year after leaving employment if over three years. Coca-Cola blew this one.
- Do they keep photocopies of IDs? Seems like a good idea, but probably not. You can do this, but it must be either 100% of the time or 0% of the time. Zero percent is easier to maintain, but are you sure? Keep one and you are fined.
- Are you using the current I-9? Redo them each year or when a new form is released. Relying on a two year old form in the file for an employee hired two years ago may not cut it! A $1,100 fine if you do.
How do you get in compliance and stay in compliance?
- Knowledge is the start of good protection. Take a course, or make surethat your HR department does.
- The Brenda J. Smith Company is offering an Immigration 101 Webinar Series focused solely on employer immigration compliance.
- 12 webinars are offered on a monthly basis.
- Can be taken individually or as a series.
- I can set you up with Brenda with discounted fees.
- Create a good faith defense
- Audits of compliance with immigration law are important. There is a statutory affirmative defense to the knowingly hired charge when the employer is able to prove good-faith compliance with the verification requirements. An external audit will help demonstrate compliance.
- How often should you audit and how much might they cost?
- Spot audits – initially conducted by an outside firm; shows the level of risk (Coca Cola);
- Full-scale audits – annually conducted by an outside firm for best protection;
- Regular internal spot audits to ensure compliance;
- Cost varies by size and scope of employer: range of $1,500 to $50,000 plus
- The Brenda J. Smith Company can perform on site or virtual auditing services to your clients
- Again, I can set you up with Brenda.
A word about The Brenda J. Smith Company. Brenda J. Smith, Esq., is an attorney specializing in immigration law. I have been personally trained (in a group of four) by Brenda and my eyes have been opened. Much like mine, Brenda’s passion is to keep employers out of jail and in business. She is very aware of Arizona’s situation, so start a dialog with her. Phone (208) 660-5437.
Copyright 2011 – Dennis V. Niven and Brenda J Smith Company. All Rights Reserved