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In this age of enforcement, I-9 compliance is essential

Irina Batrakova

Irina Batrakova

Did you know that all employers in the United States must have every new hire complete a Form I-9 on or before his first day at work?

All employees who began working on or after Nov. 6, 1986 are required to complete a Form I-9 to verify their identity and authorization to work in the United States.

The federal immigration law requiring employers to keep a Form I-9 for all employees has become a critical and timely issue, because many businesses throughout the country are finding themselves subject to inspections from the Department of Homeland Security, the Department of Justice or the Department of Labor. With enforcement being increased, companies should be sure to stay on top of I-9 compliance.

During the first six years of the Obama administration, enforcement on jobsites increased to unprecedented levels. Although such efforts were diverted in 2015 and 2016, they have begun to increase again under President Trump. It would not be surprising to see jobsite enforcement reach its highest levels ever.

The situation for today’s employers is much more complex than ever, and it will only become more perplexing. Employers have to comply with the employer sanctions and anti-discrimination clauses of the Immigration Reform and Control Act of 1986. But now employers are being targeted for a variety of criminal sanctions, including harboring illegal aliens and laundering money, in addition to the criminal penalties contained in the IRCA.

Additionally, states have been passing new laws aimed at employers. By 2017, 23 states had passed employer-sanctions laws, though Oregon was not one of them. Of those 23 states, eight require all employers that meet jurisdictional standards to use E-Verify. Twelve other states require contractors working with state or local governments to participate in E-Verify. And some companies are having their business licenses revoked and state contracts denied and revoked when they are found to have hired unauthorized employees.

President Trump has made it clear, through executive orders, that he intends to enforce employment-verification laws more rigorously. He is proposing to hire 10,000 more ICE officers, many of whom will focus on I-9 audits (often referred to as “desktop raids”). Form I-9 affects all employers throughout the country, and the current administration vows to assess millions of dollars in civil penalties for I-9 violations and employment discrimination.

Small businesses throughout the country have already been assessed thousands of dollars worth of civil penalties for I-9 violations. And if government enforcement were not enough, employers now need to worry about matters such as losing out on contracts with companies requiring their contractors to demonstrate immigration compliance, or inheriting an immigration nightmare in a merger or acquisition.

Did you know that the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) can examine any organization’s records at will? For that reason, it is good practice for companies to undergo regular I-9 compliance audits biannually.

If ICE issues a Notice of Inspection (NOI) to audit a company’s Employment Eligibility Verification (I-9) forms, the company will often go into a panic and seek to jump right into things. However, a careful and deliberate response to an NOI will set the tone for the rest of the ICE audit process. It is important to note that an I-9 audit will be affected by a number of variables, such as whatever ICE officer is assigned to the case, and local rules. It is important to keep in mind that government investigations and audits can become complicated and lead to serious consequences.

Each employer should have a process in place for dealing with the receipt of an NOI and any accompanying subpoenas from ICE. Although ICE agents can issue both, the issuance of an NOI with a document list, rather than a subpoena, is more common.

The receipt of an NOI should be treated as any other service of process and pursued through the appropriate internal channels. Since there is not much time to proceed — the law allows for only three days — it is important that the NOI receive immediate attention. Additionally, if a company only allows certain designated employees to accept service of process, this should be communicated to the receptionist and other administrative-staff employees to ensure they are able to immediately respond in an appropriate manner when an NOI is served

It is important to note that an employer does not need to turn over any documents to ICE at the time the NOI is served, even if asked by ICE. All documents can be provided with the Form(s) I-9. Finally, companies not represented prior to an NOI should seek counsel as soon as possible for assistance throughout the process.

Irina Batrakova is an attorney with the Batrakova Law Office. Contact her at 503-210-2249 or ibatrakova@batrakovalaw.com.

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