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Higher penalties for Form I-9 violations could provide funds for more audits and raids, an immigration attorney says
All types of immigration enforcement related to the workplace—raids, audits and site visits—are likely to increase under the Trump administration, immigration attorneys predict. And any audits will focus on visa fraud, not just Form I-9 violations.
U.S. Immigration and Customs Enforcement's (ICE's) budget increased by $600 million with the compromise spending plan that President Donald Trump signed May 5, though the plan did not provide for the 10,000 ICE enforcement officers he originally called for, according to the The San Diego Union-Tribune.
However, "all the administration needs to do is reprioritize their current assignments to the worksite," said Kevin Lashus, an attorney with FisherBroyles in Austin, Texas. "There's not a need to wait for agents to be hired and trained. ICE has plenty of resources."
Mira Mdivani, an attorney with Mdivani Corporate Immigration Law Firm in Overland Park, Kan., said, "Employers should expect more raids." In case after case, ICE arrests undocumented immigrants who are paying traffic tickets at a courthouse and then interrogates them about where they work and whether there are any other employees without authorization at the same employer, she said. The arrested workers then cooperate with ICE to record conversations about the lack of legal status with the employer. "ICE is clearly building cases against employers using the latest surge in immigration arrests," she said.
"This administration will focus on ICE I-9 audits and raids in order to identify unauthorized workers and employers who may be harboring them," said Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla. "Some raids and site visits may result in very high civil or criminal penalties, which could potentially fund increased audits and raids."
She noted that in August 2016, civil penalties for simple paperwork violations on the Form I-9 increased to between $216 to $2,156 per Form I-9, even for employers without any unauthorized workers. The fines for knowingly employing unauthorized workers increased to between $375 to $3,200 per person. Willful violations can result in fines between $1,000 and $35,000, she added.
There may be "big, splashy worksite enforcement raids that make front-page news and harken back to the Bush administration. But those cases will likely take time to put together so that would be long-term," said Montserrat Miller, an attorney with Arnall Golden Gregory in Washington, D.C.
Not everyone expects there to be an increase in raids. Andrew Greenfield, an attorney with Fragomen in Washington, D.C., said they "can be a PR [public relations] nightmare for the government." He predicted that the Trump administration may conduct these raids more specifically, such as in situations where criminals are found to be working for an employer or when a large percentage of a workforce is known to be undocumented. But he added, "I don't suspect raids will be commonplace." That said, he expects more ICE audits.
Even if raids don't increase, this "shouldn't be mistaken for ambivalence on the part of this administration on the subject of immigration enforcement," Miller said. "We are entering a period of time where enforcement of our immigration laws will be a priority for this administration."
Scrutiny of Visa Programs
Workplace investigations will not be limited to employer sanctions for Form I-9 violations but also will include the scrutiny of nonimmigrant visa programs such as the H-1B and L visa programs, Miller said.
Greenfield agreed, saying, "We will see a spike in anti-fraud investigations, where the government visits worksites to determine if those on temporary work visas are performing the jobs their employers attested to the government they would perform."
United States Citizenship and Immigration Services (USCIS) will focus on H-1B cases where:
In addition, USCIS questioned in a March 31 policy memorandum whether computer programmer necessarily qualifies as an H-1B specialty occupation, Miller noted.
[SHRM members-only HR Q&A: What is an employer's responsibility when an employee with an H-1B visa is terminated?]
USCIS also recently announced an e-mail address for reporting tips, alleged violations and other relevant information about potential H-1B fraud or abuse, noted Victoria Garcia, an attorney with Bracewell in San Antonio, and Nelli Nikova, an attorney with Bracewell in Houston. "The e-mail address will be used for investigations and referrals to law enforcement agencies for potential prosecution."
RICO: Hiring with Reckless Disregard
Mdivani said that many employers are surprised to learn that the government can prosecute them under the Racketeer Influenced and Corrupt Organizations Act (RICO) if it finds unauthorized workers or contractors onsite. RICO applies if an employer hires someone in reckless disregard of the fact that the worker is in the United States illegally.
"The reckless disregard standard may be as low as a lack of I-9 training for the employer's hiring personnel and failure to conduct annual internal I-9 audits," she said.
Immigration Compliance Checklist
She recommended that employers run an immigration compliance checklist, asking:
"Corporate immigration compliance is not just I-9s," she said. "It is implementing ICE's best practices in some form. If these are not implemented, the employer is vulnerable to risks that follow from the current aggressive enforcement of immigration law."
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