“…thinkin’ bout the government”
Bob Dylan
When winter weather is in the offing, at least down here in Texas, the watches & warnings go out and everybody facebooks about it, and one is instructed to “remediate” as it were by wrapping the pipes and opening the cabinets. Well, DHS has issued the warnings : get your Forms I-9 in order, before we do it for you. Humorously (or not), the enforcement unit is acronymed “ICE” (Immigration and Customs Enforcement).
While the sun heads south for balmier climes, and the arctic days are shortening, with autumn closing in, the Department of Homeland Security (DHS) has implemented substantial fine increases for even the most innocent Form I-9 violations. It is crucially important for your firm to have its Forms I-9 ship-shape, before DHS serves you with a Notice of Inspection. Not dotting an i or crossing a t can lead to federal monetary liabilities that could severely impact a company’s ability to operate, going forward. See story and table below :
I-9 Paperwork Violations: $281 to $2,789 per Form I-9
Knowingly Employing Unauthorized Alien (First Offense): $698 to $5,579 per violation
Knowingly Employing Unauthorized Alien (Second Offense): $5,579 to $13,946 per violation
Knowingly Employing Unauthorized Alien (Third or More Offense): $8,369 to $27,894 per violation
E-Verify Employers – Failure to Inform DHS of Continuing Employment Following Final Nonconfirmation: $973 to $1,942 per relevant individual employee.
You Can’t Say As I Didn’t Warn Ye….
“Once is happenstance. Twice is coincidence. Three times is enemy action.”
Ian Fleming
We’ve been blowing this trumpet for a long time now, that DOJ/DHS/USCIS/ICE would be ramping up Form I-9 & Everify inspections, audits, and consequences. As Gandalf asked, ‘When did I first begin to guess?…Let me see — it was in the year that the White Council drove the dark power from Mirkwood, just before the Battle of Five Armies, that Bilbo found his ring. A shadow fell on my heart then, though I did not know yet what I feared.’ Or, to put it with less literary flair, it was in the year 2023, in July, as we pored over the new “final rule” in the Federal Register, a shadow fell on my heart and I knew exactly what I feared. It was the first warning shot…
A Shot Across the Bow, or Happenstance?
On July 25 of last year, the Secretary of Homeland Security published the final rule regarding the allowance of a “Virtual I-9” process to replace the physical meeting requirement for Form I-9, though this method was only available “to qualified employers, meaning those employers who are participants in good standing, in E-Verify”.
It would be hard to imagine in the I-9 world a rule more impactful to Form I-9 Compliance businesses, as it strikes at the core of the difficulties previously inherent in executing the form for truly remote employees who might never set foot in the employer’s office(s), or ever meet face-to-face with anybody in HR there.
We have previously published (here and here) about the confusions resulting from this new method, and the dubious legal provenance of “A Rule by the Homeland Security Department on 07/25/2023” – and made all the more dubious by the subsequent Chevron decision last June, the ramifications of which for the Form I-9 we’ll be covering next week – but what really got our attention, with alarm bells, was this blurb in the Register Entry :
“Although DHS is confident that the alternative procedure offers at least an equivalent level of security, DHS will monitor and evaluate data and information from ICE Form I-9 audits after the implementation of this alternative procedure to assess any measurable impacts to system integrity (such as error or fraud rates).”
Well, that absolutely promises Form I-9 audits, as a condition of rolling out this rule, and not just aimed at “the usual suspects”. The Secretary goes on to happily point out that
“The INA specifically authorizes DHS, IER, and DOL officers to inspect Forms I–9, including any copies of employee documents retained with the corresponding Form I–9… All employers are subject to audits and investigations. DHS will monitor and evaluate data and information from ICE audits conducted to assess any measurable impacts to system integrity as between the employers that use the alternative procedure and those that continue with physical document inspection.”
Attention should be drawn to the sentence “All employers are subject to audits and investigations.” That is chilling, and implicit in the paragraph is that ICE audits will be done, for this purpose, on a fairly random basis, targeting normal and generally compliant types of employers, rather than as heretofore has been the case, being sparked by suspicious hiring activity, employee complaints, or notoriously non-compliant industries and sectors.
Additionally, E-Verify itself has long been deemed to be somewhat of a “safe harbor” for employers enrolled in the program, and faithfully complying with its rules and regs, but by the very parameters of this rule, they’ll be the ones targeted for audit, for this purpose, as they are the only employers allowed to use the alternative procedure.
As we noted at that time, “If ever there was a time for employers to be afraid, be very afraid in the Form I-9 world, in my opinion it just might be now.”
Twice is coincidence?
As the months flew off the calendar in the wild autumn winds of 2023, the Department of Justice, hard-pressed to think of a Christmas present suitable to U.S. employers, came up with something worse than another sweater from Aunt Martha or a fruitcake. Reminiscent of Mr. Potter, or The Grinch, on December 19th they issued the following release, just in time for the holiday festivities to commence :
Using a Form I-9 software program does not guarantee an employer’s
compliance with federal law. Employers are responsible for ensuring that
any Form I-9 software program used to electronically complete, modify, or
retain the Form I-9 or participate in E-Verify complies with all legal requirements.
It’s a full 5-page broadside, just filled to the brim with should nots and must nots, in which DOJ warns everybody about, among other things :
One notes that there are listed contact resources, for the purpose of keeping a list, checking it twice, and reporting the naughty.
We go wayyyy back in the Electronic I-9 world, back to the inventor of the first of its kind error-checking I-9 software tool, pre-dating federal regulations governing it, back when Everify was called “Basic Pilot”, and I have never before seen the DOJ or DHS or USCIS or ICE issue such a clear warning to employers.
There was a notorious enforcement action against Abercrombie & Fitch many years ago :
“U.S. Immigration and Customs Enforcement’s (ICE) Office of Homeland Security
Investigations (HSI) recently announced it had reached a $1,047,110 settlement with the clothing retailer Abercrombie & Fitch following discovery of violations of the Immigration and Nationality Act (INA). HSI concluded that Abercrombie & Fitch violated INA provisions requiring an employer to verify the employment eligibility of its workers through the Form I-9 process. The announcement is noteworthy because HSI’s I-9 audit uncovered no instances of the knowing hire of unauthorized workers by Abercrombie & Fitch, but rather the fine resulted solely from numerous technology-related deficiencies in the company’s electronic I-9 verification system.
Brian M. Moskowitz, special agent in charge of ICE HSI for Ohio and Michigan, noted that “[e]mployers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance.” Mr. Moskowitz went on to state that “the settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants.””
It appears to me that DOJ in its December 2023 release is saying exactly the same thing as Special Agent Moskowitz, though with a good bit more velvet in the delivery. The huge fine was levied against A & F because, as their electronic system was judged to be non-compliant with federal law governing those systems, they were deemed to have … no I-9s at all.
So that’s two strikes, or blows, or shots or cannon balls or whatever metaphor is most suitable, aimed directly at two cohorts who have the most reason to feel secure about their compliance : Everify users in good standing, who, while USCIS has never directly stated as much, have long floated comfortably in an implied “safe-harbor”; after all, they are submitting all the I-9 data straight to the federal government, and terminating, or continuing to employ, as Everify dictates, and, secondly, users of electronic I-9 systems, often integrated directly with Everify web-services. The best of these systems manage in one place your entire Form I-9 workflow, but the first thing they’re designed to do is to absolutely prevent “Paperwork violations”, by catching and forcing compliant entries in every field of the I-9, and utterly removing even the possibility of “over-documentation” for example, over-documentation being an egregious no-no in a ICE I-9 audit.
Or it could, of course, be simply coincidence. Which brings us to Event # 3 of the last 14 months.
Three times is enemy action
As noted above, DHS has increased the fine amounts for I-9 offenses, in a waning shot to everybody. After all, if the “Final Rule” requires as a condition audits of those (Everify companies in good standing) employers allowed to use the “alternative methodology”, to “assess any measurable impacts to system integrity as between the employers that use the alternative procedure and those that continue with physical document inspection”, and therefore everybody else is subject to those same audits, just in order to prove up the methodology.
But there *might* be more to it. As our friends over at Cozen O’Connor have noted in a recent article,
“Over the last two years, there has been an increase in fines for failure to comply with I-9 regulations, as well as increased awareness of I-9 compliance in general. Historically, when DHS departments (including I-9 and USCIS) increase fees, that typically leads to more money available for enforcement, which, in this case, includes I-9 inspections.”
We are pretty certain of the conclusion to be drawn from all of this; Thanos is coming, for your I-9s, and it is time to make doubly-certain that your I-9/Everify ship is in order, and ready to be examined by a martinet Admiral (or a nice, helpful one).
David Adams
Form I-9 Compliance/Remediation Services
The Form I-9 Company
(P) 325.238.5866
Visit us at The Form I-9 Company