During the last two years, immigration law and related enforcement have become a central focus of domestic policy discussions. This spans more than border walls and detention centers and includes increased activity concerning I-9 compliance. The Department of Homeland Security administers the country's I-9 program, which makes it mandatory for all employers to verify their employees' employment eligibility, regardless of citizenship or company size.

DHS's Immigration and Customs Enforcement has escalated its efforts to oversee and enforce I-9 compliance, both in terms of conducting audits and worksite raids. It is more important now than ever that employers understand and properly implement processes in line with the relevant immigration compliance requirements to minimize the risk of six-figure fines and other penal actions, including criminal prosecution and debarment from federal contracts.

Foreign nationals working illegally have been a growing concern over the past 100 years. Yet comprehensive regulations were not implemented until 1986 when President Ronald Reagan signed the Immigration Reform and Control Act into law. IRCA represented a significant milestone in immigration policy, codifying the prohibition of employing aliens not authorized to work and establishing the I-9 program.

Then, and still today, I-9 is more than just a compulsory onboarding employment form. It is a legal document requiring employers to verify their employees' immigration status under penalty of perjury. And it is a crime for employers to knowingly hire and/or employ foreign nationals who are in the U.S. illegally.

By 1996, the system had become overly burdensome for employers who were not given the chance to correct even insignificant form errors before penalties were levied. When a considerable amount of the fines issued in relation to I-9 violations involved technical failures, such as the omission of an employee's maiden name or the date of signature, the government realized that it had to return its focus to the main objective of I-9 verification: to deter the employment of illegal workers.

With President Bill Clinton's endorsement, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 contained a provision that established a standard of “good faith” for employers that allowed them a 10-day period to correct minor form errors. This was more in line with the intent of the original legislation for I-9 to be used as a means for federal oversight and to deter the employment of illegal workers, not as a hindrance on companies for technicalities.

Between 2001 and 2009, ICE enforcement of I-9 under President George W. Bush more closely corresponded with IRCA's aim; it consisted primarily of raids on worksites that had multiple illegal workers, promulgating the punishment of these employees and their employers.

However, focus pivoted again as President Barack Obama's administration conducted numerous audits of employer compliance with Form I-9 requirements and the occurrence of raids steeply declined. Since President Donald Trump took office in 2017, both avenues of enforcement have been pursued with equal vigor. Auditing I-9 records is now easier than ever, especially with the electronic version of the form. ICE plans to establish a central hub or “Employer Compliance Inspection Center” where it can conduct over 15,000 audits a year.

Given that both audits and raids are becoming more commonplace, it is critical that employers have a robust I-9 compliance practice in place. While any company can be subject to a raid or audit, those in certain industries may be more susceptible based on trends. These include, but are not limited to, establishments employing service and seasonal workers; government contractors; and important infrastructure sites such as schools and airports. The agency recently settled a hefty $95 million agreement with a Pennsylvania-based tree-pruning company for I-9 violations.

Audits

Companies are generally issued a notice by ICE giving them 72 hours to release their original I-9 records for a formal audit. ICE will most likely request that the employer provide supporting documentation in addition to the I-9 forms, which may include business licenses and payroll records. The outcome may include the employer being presented with a notification of technical or procedural failures letter allowing 10 days to correct paperwork errors. A determination of paperwork violations—failure to properly complete, retain, and/or produce I-9 forms—can result in penalties from hundreds to thousands of dollars for each individual for whom verification was improper or omitted. Further, discovery of substantial violations can lead to a warning and/or a criminal investigation.

Raids

After an investigation and a finding of criminal probability, ICE can obtain warrants for illegal immigrant workers in addition to the business owners and management who knowingly employ them. Raids usually occur without notice, often relying on the element of surprise to catch violators.

Best Practices

Companies can implement the following best practices to reduce their liability should they be subject to an audit or a raid.

• Use E-verify to confirm new workers' employment eligibility.
• Train/retrain employees on I-9 procedures and changes.
• Verify all I-9 documents in person to ensure that documents appear legitimate.
• Have a lead I-9 professional oversee records and consistency for all employees. Companies should keep all I-9 records together and independent from other personnel files.
• Have established immigration and I-9 policies with consideration to privacy and discrimination matters.
• Utilize an I-9 tickler system.
• Undergo periodic internal I-9 audits and purge old I-9 forms beyond the retention period.

Having best practices can demonstrate a company's good-faith efforts to comply and help it weather any ICE investigation. Under the government's continued and growing focus on immigration worksite enforcement, I-9 compliance demands the attention of all employers now, regardless of industry or size.

Kristen T. Burke is an of counsel in the Houston office of Greenberg Traurig. She focuses her practice on corporate immigration matters, including visa petitions, I-9 compliance and applications for submission to various U.S. governmental agencies. Sarah E. Amendola is an associate in the immigration and compliance practice in the firm's Northern Virginia office.