“ A lot went through my head”, said Mr Rivera, 29, a father of two and an immigrant from Honduras. “Like how will, I pay my rent and bills?” On April 21, 2017, a New York Times reporter named Tejal Rao arrived at Tom and Cat Bakery in the long Island city section of Queens at 3 am. It was freezing, and the rain had just begun to fall again. Workers and activist gathered to rally outside of Tom’s Cat Bakery that Friday morning. More than 100 people had gathered in by 7 am, carrying signs that read “No Human is Illegal” and “Rise and Resist”. Others in the food business around New York joined in the demonstrators call for “A day without bread”. The protest was prompted by a federal investigation that began last year in 2016 and threatened the jobs of several immigrant workers. Henry Rivera, an employee for 11 years, said he and 30 other workers were each called into a private meeting with a manager, and told that they could lose their jobs if they didn’t produce paperwork by that Friday showing they could work legally in the United States. After reading this article, it could pose one to ask several questions. As workers were losing their jobs, it was clear that their employer Tom Cat Bakery has been in violation within I-9 guidelines and compliance, and now facing IRCA penalties that have led them to terminate immigrant workers.
My first question, what is an I-9 form and who is required to comply with it? Apparently, Tom Cat Bakery didn’t feel the need to comply with I-9 rules and regulations. Secondly, how can employers stay in compliance with I-9? Undoubtedly, the task to do so isn’t that difficult, and if so how can employers avoid the violation of employee rights and IRCA penalties? How should employers not handle I-9 compliance and how what I-9 forms should be used? Lastly, do government agencies share information and tip off the ICE about potential violators? In a further investigation to the questions listed above, it will be a pleasure to answer and review in terms what the United States laws have enacted.
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The I-9 is a form that employers use to verify workers and employment eligibility to whom they have offered employment. All U.S. employers must ensure proper completion of form I-9 for each they hire for employment in the United States. This Includes citizens and noncitizens. Both the employer and employee must complete the I-9 form. The form requires an employee to attest to his or her employment authorization. Employees are mandated to examine the validity of employment eligibility and identity documents presented to them by an employee. In the case of Tom Cat Bakery, things seemed to have fallen between the cracks for verification. Their non-compliance potentially exposed them to fines and other more serious sanctions for knowingly hiring individuals who are not authorized to work in the United States.
Moreover, employers can stay in compliance with I-9 there are specific rules concerning when and how the I-9 form must be completed. Section 1 of the I-9 form must be completed by the end of the employee’s first day of work for pay. Section 1 requires employees to provide their full name, date of birth, address, and to mark next to the appropriate box indicating whether they are a U.S. citizen or non-citizen etc. Employees must also provide an alien number/USCIS number if applicable, signature and date. An employee must sign the form even if a preparer or translator helps them. Section of the I-9 form is for the employer review an attestation. Employers must complete and sign the I-9 form and employment eligibility verification within three business days following the first day or work for pay. For example, if an employee begins work on Tuesday, section two of the form must be completed by Friday. It would be in the best interest of the employer to make copies of each employee I-9 form, to correct any problems identified during a periodic self-audit or in advance of a government audit. Employers should also consider staying in compliance with instances in which completing form I-9 can vary in such cases as recertification when an employee work authorization document has expired. During the rehire process of a previous employee or when in use of a third-party agent.
In short, another source employers can use to stay in compliance is by using E-Verify. E-Verify is as an internet-based system operated by the DHS (The United States Department of Homeland Security) in partnership with Social Security Administration. E-Verify allow employers who use the software to verify the employment eligibility of their newly hired employees electronically. According to the USCIS websites allows the employer to enter the employee’s information from the I-9 form into E-Verify which then creates a case. E-Verify compares the information to records available to the U.S Department of Homeland Security, including U.S passport and visa information, immigration and naturalization records, and state-issued social security administration records. Many states have enacted laws requiring employers doing business with the state, to verify the legal status of each employee to work in the United States. Employers should verify state law requirements regarding immigration and employment in states where they live. Several states have also enacted laws that require either all or certain employers to register for and use E-Verify. E-Verify is voluntary those states in which E-Verify legislation has not yet been enacted. According to law logic website, the state of New York does not require employers to use E-Verify as a means to verify employment eligibility. Tom Cat Bakery could benefit from using E-Verify if they haven’t done so already. This can potentially stop the hiring of illegal immigrants and avoid painstaking terminations that eventually hurt families like Mr Rivera in the long run.
On the other hand, employers can avoid the violation of employee rights and IRCA penalties by educating themselves and Human Resources on government laws and the forever changing I-9 practices. Employers are sometimes confused on issues of immigration although there are many debates about the U.S. government controlling immigration and its effect on American jobs. Employers should instead stay focused on compliance with the current law and the powers the IRCA can enforce across the United States. The IRCA (Immigration Reform and Control Act) was passed by Congress in 1986 to support an argument that opportunity for employment in the United States attracted several illegal immigrants, and that the United States lacked a credible system to monitor and penalize those companies who allowed unauthorized workers to remain in their employment. The IRCA distributes penalties against all employers who willingly and knowingly employed individuals who are ineligible to work in the United States. The act required that by 1986 of November 6th all employers must verify the employment eligibility and identity of those they want to hire, who work in the United States. The I-9 employment verification form is a tool used by the IRCA to measure the employer’s compliance with the act.
In following, all employers should caution, IRCA anti-discrimination rules. The IRCA anti-discrimination rules are apparent, and its sanctions could be very severe. Under IRCA, employers cannot refuse to employ or terminate the employment of individuals based on their national origin or citizenship status. Employers who do so stand in violation of IRCA and sanctions are put in place. Violations have cause some employers to pay a total over $ 1 million in back pay to the worker, others had required employers to rehire workers, and has levied fines totaling hundreds of thousands of dollars. The IRCA imposes civil and criminal penalties against employers who hire, or continue to employ, undocumented workers. The penalties for hiring unauthorized workers can amount to anywhere from $250 to $5, 500 per worker. In addition to those penalties, I-9 documentation errors could also result in significant fines. Each mistake or missing item on a form can result in a $100 penalty up to $1, 000 for each form. If an I-9 form is found to be missing during an IRCA inspection an automatic penalty of $1000 could occur.
In an article written by Jimmy Robison on Lawson, he reported that recent immigration and custom enforcement raids have made it very clear that not only do those found to be working in violation of immigration laws, also run the risk of being arrested and placed in a removal proceeding. Employers who fail to comply with IRCA’s I-9 rules will also result in higher fines, negative publicity, possible criminal charges and potential loss of revenue for the company. In the same way as Tom Cat Bakery who got plastered all over the New York Times.
Employers may be tempted to take some shortcuts when filling out I-9 work authorizations forms for new hires. This sometimes happened because employers like to assume that their employees are authorized. They also know that they don’t actually have to submit those forms to the feds most employers just simply file them and forget about them. However, when companies receive a visit from Immigration and customs enforcement (ICE), those annoying forms have now turned into a major problem. This is what happened in the case of Ketchikan Drywall Services, Inc. Ketchikan is a small drywall business that operates in Washington State. Ketchikan had only four full-time employees and about 20 part-time employees, and occasionally hires additional employees on a project basis. The problem is that over the years, more than a dozen different employees have handled the process of completing I-9 forms. When presented for an I-9 audit back in 2000, Ketchikan received a warning notice from the Immigration and Naturalization Services (INS) about its I-9 procedures. After that warning Ketchikan hired staff that could control their I-9 issues but that wasn’t until 2006. It’s likely that the company didn’t feel the need to expedite the process. Until 2008, ICE served turned around and severed Ketchikan with a notice requesting original I-9 forms and any copies of attached documents present at the time of I-9 completion for employees working from January 1, 2005 to March 2008. The company only produced some I-9 forms and documents in 2008. A year later ICE served them with a Notice of Intent to fine (NIF) that the company produced additional forms and documents. ICE reviewed the documents and served Ketchikan with a revised NIF in 2009. The amended NIF found 43 employees Ketchikan failed to produce any I-9 forms; 65 employees for whom section 1 of I-9 was incomplete; 110 employees for whom section 2, the employer failed to complete; and 53 employees for whom there were omissions in both section 1 and section 2.
In this case, missing information included forms where the employees failed to check any box in Section 1 to indicate their status, for example, citizen, permanent resident, etc. Forms where employees checked the box indicating lawful permanent resident status but failed to give an alien number, and forms that relied on drivers’ licenses to establish identity but didn’t include the issuing authority and license number or a copy of the license. In some cases, Ketchikan created a new I-9 form for a rehired employee by combining a photocopy of Section 1 of the employee’s previous I-9 with an updated Section 2. ICE eventually proposed a fine of $286,624.25. Ketchikan then requested a hearing before an administrative law judge, at which time it attempted to produce additional documents to fill in the blanks on its I-9s. The documents were rejected, and the judge ordered Ketchikan to pay a slightly reduced fine of $173, 250. Refusing to pay Ketchikan appealed but the Ninth Circuit upheld the fine.
Employers can learn from the case of Ketchikan Drywall Services, and it’s I-9 problem. The first thing employers should do is to “check” the employees work. An employee is responsible for filling out Section 1 of form I-9, but the employer should double check to make sure that it has been completed properly. Ketchikan Drywall Services argued that it was responsible for errors or omissions made by employees in section 1 of Form I-9. However, the Ninth Circuit noted that the law makes the employer responsible for establishing the employee’s work authorization. The company also argued that it is enough for an employee to sign Section 1 attesting that he or she was authorized to work generally and that there is no requirement for the employee. However, here again, the law says otherwise. Employees must attest to a specific category of work eligibility. According to the court, where Ketchikan Drywall Services chose to hire employees who failed to fill out Section 1 completely, it did so at its peril.”
An employer should fully complete Section 2 even if photocopied documents of the same information are retained in the employee’s file. Ketchikan Drywall Services claimed that many of it is I-9 violations were not violations at all because it had copied and retained documents that could be used to fill in the missing information on the I-9. Ketchikan Drywall Services argued that it is senseless to require employers and employees to waste time transcribing information onto I-9 forms when that information is readily available on an attached copy of the relevant document. However, the Ninth Circuit concluded that filling in the I-9 form is not only sensible, and it is the law. An employer can copy and retain a verification document presented by an employee. However, copying and retaining an employee’s documents is not an alternative to filling out the forms completely. Requiring the employer to take the time to copy information onto the I-9 form helps to ensure that the employer reviews the verification documents. Moreover, the I-9 form also provides concrete evidence that a review took place. Also, aggregation of all the relevant information onto one form allows for easier review by ICE. According to the court, “ICE might be able to sleuth out information on its own, but that does not relieve employers of the obligation to fill out…their I-9 Forms fully.
When an employer rehires an employee, it has the option of either using Section 3 (Reverification and Rehires) of the employee’s prior I-9 form or creating a new I-9 form. Ketchikan Drywall Services took a different approach by cobbling together a copy of Section 1 of a re-hired employee’s prior I-9 and filling in a new Section 2. However, the court said there is no option to proceed by combining forms. The employee’s Section 1 is intended to provide a concrete manifestation that the employee attested to the information on the form. Where a new I-9 is generated using a photocopied signature, the employee has not attested to anything with respect to the new form. Should companies receive a visit from ICE, cooperation would best. Companies should provide all I-9 forms and accompanying documentation up front. The court in this case acknowledged that ICE will excuse deficiencies on the I-9 where the missing information has been copied and retained but only if the information is found on a legible copy of a document retained with the Form I-9 and presented at the I-9 inspection. By contrast, Ketchikan Drywall Services attempted to cure deficiencies in its I-9 forms by presenting documentation long after the inspection was over. The court held that documents that Ketchikan had not presented at the I-9 inspection could not excuse any deficiencies in the I-9 forms to which they related. When employers act in good faith I-9, slip-ups may be excused if the employer made a good faith effort to ascertain what the law requires or to confirm it conducts to it.” However, the Ninth Circuit agreed with the administrative law judge’s finding that Ketchikan did not make a good faith effort to comply with the law. In fact, the company’s compliance record was described as dismal.
With recent news of several companies being in violation of I-9 forms, many tend to think that government agencies share information and tip off the ICE about potential violators. The Immigration and Customs Enforcement (ICE) can be triggered and led to performing an I-9 audit when a history of social security non-match letters comes about. Other triggers can also stem from the Department of Labor Wage and Hour Division regulations and most likely, in other federal, and or state, regulatory compliance. It is safe to assume that government agencies share information and more of an understanding between government agencies now. For example, the government does not only go after big employers like Disney but also small known companies like Tom Cat Bakery. Which employs about 180 workers in Long Island city, Tom Cat Bakery is one of Japan’s largest bread producers; it supplied bread to many New York restaurant and stores. Many of Yemeni Bodeja owners in Bay Ridge and other parts of Southern Brooklyn felt that the most vulnerable and weakest were being targeted. In another case, Disney in California was fined for having over a thousand paperwork violations. IRCA compliance officers were to fine Disney land $395,000. Georgia packing company was fined over 1 million dollars by the immigration services for smuggling undocumented aliens into the United States. This also goes without saying that I-9 forms must be honestly completed so employers can avoid running into serious problems arising from false claims of U.S. citizenship.
A note to employers and human resource management, paying attention to form I-9 and compliance policies will help avoid unnecessary sanctions and penalties. Today ICE is clearly in an aggressive enforcement pursuit. Even if companies employ no foreign workers, employers are not immune from audit and sanctions if they don’t have a properly completed I-9 employment eligibility verification form for every employee in their workforce hired anytime after November 6, 1986. Employers should remember that the I-9 is a deceptively simply looking one-page form. When I-9 audits are done there are sometimes error rates that exceed fifty percent. There are a few practices employers can adopt for an I-9 compliance program. Employers should have a well-written policy, a system that stores I-9’s separately from personnel files, and house I-9’s in separate notebooks binders preferably three, one for whom verification will never be required, current employers requiring verification and terminated employers. Follow employers follow these and other well organized simple I-9 practices can help employers go a long way toward reducing their risk.
