By Lawrence Ross – Guest Column
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Buffalo and our Western New York community may geographically be a border town and community, but the immigration enforcement debate seems a world away for most area small-business employers. Yet we are not immune from federal government enforcement initiatives. Kitchen raids conducted in Buffalo in October 2016 by agents from Immigration and Customs Enforcement (ICE) reminded local employers of the dangers of employing undocumented workers. And recently, the owner of the raided restaurant business pled guilty to tax evasion and conspiracy to unlawfully employing illegal aliens, resulting in the forfeiture of over $1 million in assets. The growing trend of enforcement activity, however, is not limited to restaurants and farms.

The documented effort across the country to enforce our immigration laws through audits and worksite raids makes it imperative for local businesses to turn their attention to an often-overlooked area, and develop and implement strong compliance policies. In order to do so, it may be prudent to examine how ICE enforces immigration law by looking at the strategy it employs to conduct worksite visits.

A three-pronged approach is posted on the ICE Worksite Enforcement webpage:

  1. Demand greater compliance by conducting administrative I-9 inspections;
  2. Take criminal action against employers who knowingly employ undocumented workers, and remove such unauthorized workers.
  3. Promote outreach programs to encourage voluntary compliance and accountability.

Worksite visits, increasingly focused on I-9 compliance, may be initiated for a number of reasons.

Each employer is obligated under law to establish the identity and employment authorization of newly hired employees. Typically, this is done before the first day of employment by having the newly hired individual present a U.S. passport or green card; a driver’s license and Social Security card; or other valid ID.

The employment eligibility verification form (USCIS Form I-9) is completed and signed under penalty of perjury. The I-9 Form is then maintained by the employer with its permanent records.

In some instances, the information presented to establish identity or employment authorization may become outdated. This may occur if, for example, an individual’s work authorization expires after the commencement of employment. It is incumbent upon the employer to keep track of this.

Sloppy record-keeping or no record-keeping at all could be problematic in the event of a worksite compliance visit. Such a visit could be initiated by a credible tip or lead, the need to take into custody a particular person or by the mere fact that the business is in an important sector or industry.

If an employer is targeted, ICE moves swiftly in taking its auditing actions. Once an employer gets a notice of inspection, that employer is required to produce its I-9 Forms within three business days. An inspection usually follows.

Other supporting documentation is likely to be demanded, including payroll paperwork, employee lists and business licenses.

Employers should take note: The risk of an I-9 audit has increased. Since October 2017, thousands of worksites have been visited and hundreds of criminal charges have been lodged against business owners and managers. 

Hundreds more organizations have been audited.

The message to business owners and managers couldn’t be clearer: Hire qualified, documented U.S. workers and keep accurate business records, or risk fines and/or jail time.

The tragic slaying of Mollie Tibbets, allegedly perpetrated by an illegal immigrant, may signify that this debate has entered new territory.

One response may result in mandatory use of the now voluntary “E-Verify” eligibility system. Commentators assert that the growing collaboration between the Department of Labor and the DOJ’s Civil Rights Division likely means a more ardent effort to uncover “discrimination” by employers who are said to prefer hiring temporary visa workers over qualified U.S. workers.

Don’t be caught unaware. Review your existing policies, examine the state of your documentation and assess your legal exposure. If necessary, consult with competent counsel and consider mock audits of your I-9 Forms, E-Verify and the like.

This sort of preparation will be invaluable and is prudent to consider in advance of an unexpected compliance audit or worksite visit.

Lawrence Ross is a member of Hurwitz & Fine P.C. who focuses on business and corporate law: [email protected] Lee Sobieski, a partner at Berger Berger & Sobieski, assisted with this article: [email protected]