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I-9 Compliance is a “Hot” Area - How to Avoid Getting Burned

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Ryan E. Lamb & Amanda K. Garcia-Williams
Foster Swift Agricultural Law Update
July 2011

Since 1986 the U.S. has placed upon employers the burden of acting as gate-keepers in the enforcement of the immigration laws. At the same time, employers must be very careful not to discriminate against authorized employees or candidates for employment based on citizenship or national origin. The result is a very fine line that employers are required to walk, with steep pitfalls (business disruption, steep fines, negative publicity, discrimination lawsuits, and criminal penalties) awaiting any missteps.

In the last few years, immigration reforms and increased enforcement have been the topics of extensive debate. While our politicians have not been able to agree upon any major new policies, one proposition which seems to meet little objection is the idea that employers should be subjected to greater scrutiny and enforcement, increasing the burden of their role as front-line evaluators of workforce authorization. Indeed, the last few years have seen significant increases in workforce audits and raids by U.S. Immigration and Customs Enforcement ("ICE") at all levels. In fact, the Obama Administration has made employers the center of its enforcement strategy in addressing undocumented workers and illegal immigration. You have probably read reports of a few of the more prominent raids or enforcement actions, which have made national news.

An I-9 audit can be triggered for a number of reasons, including random samples and reporting by disgruntled employees (or ex-employees). Certain business sectors, for example food production, are especially susceptible to I-9 audits, and "silent raids" by ICE. In the event of an audit, your company will need to establish its I-9 compliance with ICE. Without a proactive approach, such responses are likely to be reactive and defensive. This typically leads to an internal emergency in responding expeditiously, resulting in a harried response, lost productivity, increased attorney’s fees, worker replacement difficulties, and possibly fines or criminal charges.

Therefore, while proper I-9 compliance has always been important, it has never been more essential. It is not enough for employers to simply fill out the I-9 form to the best of their ability according to the basic form instructions and throw them in a file. The risks are simply too high to maintain a lackadaisical approach to I-9 compliance, if that is your current posture. Proper I-9 compliance requires due care and proactive planning.

Every employer should have a formal internal I-9 Compliance Policy detailing the employer’s exact policies and procedures for properly completing, verifying and retaining I-9 and employment authorization documentation, for assigning supervisory responsibility within the company for these duties, and for self-audits or other periodic internal monitoring efforts to insure compliance. In addition, the employer’s Employee Handbook should contain a section explaining to the employee the employer’s and the employee’s respective obligations with respect to Form I-9.

With all of the enforcement activity, publicity, and risks, especially to agricultural employers, it is time to get proactive on this issue - please contact one of the experienced immigration or employment attorneys at Foster Swift to discuss a comprehensive approach.