The United States Immigration and Customs Enforcement’s (“ICE”) Homeland Security Investigations Unit has increased its efforts to investigate employment records of businesses located in New York, New Jersey and Connecticut. In 1986, the Immigration Reform and Control Act (IRCA) was passed and since that time all employers have been required to verify the identity and employment eligibility of their employees. Specifically, Section 274A(b) of the Immigration and Nationality Act (INA) requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, 1986. Employer must complete and sign the Employment Eligibility Verification Form I-9 (Form I-9) for each employee within 3 days of the employee’s hire date. Employers are required to maintain the Form I-9s for all employees for atleast 3 years or one year after the employee separates from employment, whichever is longer. It is critical to ensure you are in compliance because the penalties for certain violations can be $16,000 (or greater for repeat offenders) and you could also be subject to criminal prosecution. This is a serious issue that cannot be ignored.
Form I-9 ICE Investigations Are on the Rise and Can be Deadly for Businesses
Completing the Form I-9 is not a complicated or onerous process but failure to comply can result in serious civil and criminal penalties. Our ICE Employment Law Attorneys regularly provide advice and counsel to clients to ensure compliance before a costly and time consuming government audit is triggered. In 2009, ICE declared it was increasing its enforcement strategies to prevent the use of illegal employment and to protect employment opportunities for individuals who are authorized to work in the United States. In Connecticut alone, during 2012, ICE fined12 employers with penalties totaling over $130,000.00.
A Few Examples of Local Small Businesses Issued Monetary Penalties
1. Calabro Cheese Corp. of East Haven was fined $45,000;
2. Superior Plastics Extrusion Company Inc., aka Impact Plastics, of Putnam was fined $34,000;
3. Kingswood Kitchens Company Inc. of Danbury was fined $12,000;
4. Prostar Inc. of Farmington was fined $10,472;
5. Contour Landscaping Company Inc. of Stamford was fined $8,104; and 6. Acranom Masonry Inc. of Middlefield was fined $4,500.
The number of penalties is significant because it shows a tremendous jump in the number of government prosecutions by 12 fold. ICE is targeting employers that knowingly employ undocumented workers and focus on specific industries and businesses known to hire undocumented workers. Many small businesses could be at risk. It is critical for businesses to self-audit their employment practices before a government investigation ensues.
Brief Overview of the Process
The investigative process generally starts with your business receiving a Notice of Inspection, which requires that your business provide copies of all Form I-9 to ICE within 3 business days. ICE will often seek additional supporting employment-related documentation such as payroll records, quarterly payroll filings, and business formation documents. The agency will then scrutinize your employment and business records for compliance. If you are determined to have knowingly hired an undocumented worker, you could face criminal prosecution and civil fines. Further, you could be prevented from participating in future government contracts and from receiving certain government benefits. The monetary penalties range from $375 to $16,000 per violation with increased penalties for repeat offenders. The following five factors are considered when issuing a penalty — the size of the business, good faith effort to comply, severity of the violation, whether the violation involved unauthorized workers, and your history of prior violations. If you receive an adverse determination, you can request a hearing before the Office of Chief Administrative Hearing Officer (OCAHO) within 30 days.
If you have received a Notice of Inspection from ICE or HSI or want to learn more about compliance, contact our employment law attorneys for a confidential consultation at (800) 893-9645.
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