Establishing An Effective Immigration Workforce Compliance Plan For Your Business

Establishing An Effective Immigration Workforce Compliance Plan For Your Business

On April 30, 2009, the Department of Homeland Security (“DHS”) announced a revised immigration workforce enforcement strategy, which shifted its focus from illegal workers to the employers who hire them. This employer focused model incorporates a policy of government audits, which entail an in depth examination of all required employee documents, a review of an employer’s policies and procedures for producing and retaining those documents, and an analysis of the company’s wage and safety practices and enforcement history. The investigations may also include in-depth interviews with the company personnel involved in workforce recruitment and hiring as well as those responsible for correcting employee forms and resolving Social Security “no-match” reports. The audits can result in crippling penalties to business owners, who in fiscal year 2014 collectively paid out over $51 million in civil penalties and criminal fines. Only by implementing and maintaining a comprehensive internal immigration compliance policy can a company effectively protect itself from these harsh consequences.

An expansive workforce compliance investigation will typically be conducted by a number of agencies under DHS, including Immigration Customs and Enforcement (“ICE”) and United States Citizenship and Immigration Services (“USCIS”). Additionally, in 2011 ICE and the U.S. Department Of Labor (“DOL”) entered into a Memorandum of Understanding (“MOU”) concerning enforcement activities at worksites. In the MOU, the agencies agreed to create a means in which to exchange information from their respective investigations. This sharing of information only accentuates a company’s need to be proactive in preparing for worksite investigations through the creation of internal safeguards, specifically by establishing an effective compliance policy.

At the heart of any effective compliance policy is a systematic internal review of a company’s hiring and record keeping practices. This review, (otherwise known as an “internal audit”), should seek to insulate the business from legal exposure by identifying areas of potential civil and criminal liability that lead to the development of recommendations to cure existing violations and to prevent future ones. The internal audit should also seek to establish up front defenses to future worksite investigations by establishing evidence of good faith compliance. The Immigration and Nationality Act (“INA”) specifically provides for a good faith compliance defense, which both deters state and federal officials from pursuing civil or criminal prosecution of the employer and mitigates fines and penalties if such action does occur. An effective compliance policy can also be instrumental in controlling the risk of liability in civil RICO actions predicated on worksite immigration felonies.

Any worthwhile immigration compliance policy should also include a comprehensive I-9 production and retention plan. While every business is unique and will obviously have its own method of implementation, an effective I-9 plan should always include ten essential features:

  1. The establishment of standard I-9 completion procedures;
  2. Procedures for completing and processing I-9s at non-headquartered facilities
  3. Procedures for updating I-9s;
  4. I-9 storage and retention procedures;
  5. Documentation evincing that employer has an I-9 for all current employees and terminated employees covered by the retention period;
  6. Deterrence procedures for rogue employee activity—document/identity fraud, illegal hires;
  7. Cataloging the results of past internal I-9 audits;
  8. A Listing of individuals authorized to execute I-9 forms;
  9. Creation of I-9 training materials and records of training sessions;
  10. An immediately accessible representative sampling of I-9 forms (original forms and attached documents).

While every company would greatly benefit from incorporating these ten aspects into its I-9 compliance plan, it is especially vital for businesses that by their very nature would be considered a high-risk investigatory target. High risk include those companies with: non–English-speaking workers in low-level jobs working directly or indirectly for the employer; prior I-9 or employer sanctions violations and warning letters; a record of foreign workers who have been arrested and detained and interrogated by police or immigration officers; sponsorship of out-of-status foreign workers for immigration benefits; a history of wage and workplace safety violations; and adverse publicity for hiring foreign workers and picketing by anti-immigration groups.

As the 2016 presidential race kicks into gear, the need for immigration reform will most certainly be a dominant aspect of the national conversation. And unlike most issues, holding employers more accountable in abiding by workforce immigration laws is one area that many Democrats and Republicans routinely agree on. It is, therefore, essential for business owners to plan to defend themselves against what is expected to be an even more aggressive government policy of compliance investigations. Preparing for this reality in advance is the most effective way to avoid the imposition of crippling monetary fines or even criminal prosecution.

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