Immigration Audits and Your Business

In 2010, more than 2,000 businesses went through an immigration audit. And this year, ICE has already audited many more companies, including sending out 1,000 notification letters to businesses in early June alone. In a time when employers have enough to worry about, they must also make concerted efforts to ensure their employees are legally qualified to work in the U.S.

Under the Obama administration, the focus on illegal immigration has moved from undocumented immigrants to their potential employers. Gone are the days of loud immigration raids like the ones we saw under the Bush administration. Instead, ICE (U.S. Immigration and Customs Enforcement) has focused its efforts on so-called "silent raids." The goal is to prevent illegal immigration by stopping the supply of jobs for undocumented immigrants.

However, businesses often find themselves in a catch-22 scenario. The fraudulent forms they receive from employees may seem legitimate and to inquire further into the forms to ensure that they are valid can put employers at risk for racial/employment discrimination.

So, what do you do? If you are a business facing an ICE audit, or you would like to learn more about how to prevent an immigration audit, an employment-based immigration attorney can explain the law to you and help you understand the steps you need to take.

What an ICE Audit Means for Your Business

There are many potential consequences that can come out of an immigration audit. Employers may face fines, jail time, debarment from government contracts, and criminal penalties (for charges such as knowingly employing illegal workers or fraud).

They can also lose vital employees. If employees cannot provide accurate documentation, employers must fire them. However, unlike in immigration raids, ICE will not deport the undocumented workers after an I-9 audit. Instead, those workers that were so vital to a company may seek jobs elsewhere, including with the company's competitors.

ICE business audits occur most frequently in industries such as the construction, food production, financial services and information technology. However, they can happen to any company suspected of employing illegal immigrants.

In addition to ICE audits, the Social Security Administration has sent many "no-match" letters to employers this year. These letters state that an employee's W-2 does not match up with the information on file with the Social Security Administration.

Checking Employment Eligibility: E-Verify

Under federal and state law, employers must check on the employment eligibility of job applicants. This is typically done through the I-9 Form / Employment Eligibility Verification Form. Every employee hired in the U.S., including citizens, must fill out an I-9 form.

E-Verify, a federal program run by the Department of Homeland Security (DHS), allows employers to electronically verify employment authorization of job applicants by matching up job applicants' green card information with their Social Security information.

In 2011 alone, ten states (including Florida and North Carolina) enacted legislation requiring E-Verify. There is also current federal legislation that proposes to make E-Verify mandatory for all employers.

E-Verify is a potential solution to protect your company from immigration fraud. However, there are questions about its reliability. Furthermore, use of E-verify does not guarantee that your company will not be audited by ICE.

Employers who use E-Verify must display two posters to inform employees that they are using the program, including the DHS's E-Verify participation poster (must display in English and Spanish) and the Department of Justice's Right to Work poster.

Other Steps Employers Can Take

There are many steps that employers can take to protect themselves before and during an I-9 audit, including:

  • Keeping good records / documentation
  • Randomly checking on employees to ensure they are completing their I-9 forms and that any missing information is filled out
  • Holding onto an I-9 form for at least three years or for one year after an employee leaves your business (whichever is longer)
  • Treating all of your workers exactly the same

These are only a few of the steps you can take to protect your business. To learn more about immigration audits, speak with an employment-based immigration attorney near you.

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