Rise in Immigration Compliance Audits May Lead to Costly Penalties and Litigation

The employment of unauthorized workers has been illegal since 1986.   Generally, it is unlawful for a Georgia business to hire, recruit, or refer for a fee an employee who is known to be unauthorized for employment.  Government enforcement of immigration laws has shifted in recent years to focus on auditing and fining businesses.  The U.S. Immigration and Customs Enforcement (ICE) agencies recently unveiled a new enforcement program that targets over 1000 employers throughout the U.S.  ICE officials have indicated they will seek enforcement including onsite document inspections of businesses of all sizes in all industries.  The broad scope of the current enforcement efforts means that any Georgia business is potentially subject to an ICE audit. The recent announcement is a continuation of immigration enforcement patterns that focus on sanctioning employers, including Georgia employers, rather than undocumented workers.  ICE targeted over 2,300 businesses with investigations between July 2009 and September 2010.  Federal law mandates that employers examine sufficient documentation to establish a potential new employee’s employment eligibility. The tool to examine documents and employment authorization is the I-9 form.  The U.S. government released these statistics on I-9 audits for the current 2011 fiscal year in mid June:

• Ice has launched  2,338 employer I-9 audits as opposed to 2,196 audits for the entire 2010 fiscal year
• The initiation of 157 criminal arrests of businesses allegedly hiring undocumented workers
• The government as assessed over $7.1 million in fines

Any Georgia business that hires an employee must be sure to have properly completed I-9 forms on file in the event that they are subject to an ICE audit under this stepped up enforcement policy.  Each new employee must execute an I-9 within three days of his or her date of hire.  While our Georgia business attorneys are prepared to zealously litigate on behalf of our clients, we strive to provide sound advice on compliance and contract issues to avoid costly litigation where possible. According to ICE assistant Secretary John Morton, “ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces.... We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.” While the I-9 form seems like a fairly straightforward and innocuous form, there are a number of errors that may inadvertently expose a company to penalties:

• Providing an erroneous issuing authority
• Accepting expired documents
• Relying on photocopies or fax copies rather than originals
• Not providing the I-9 documentation in the appropriate column
• Listing too much documentation
• Using red ink
• Application of white out to correct an error
• Any extraneous marks anywhere on the form

While some of these rules seem hyper-technical, a Georgia business that fails to comply may be exposed to penalties.  Georgia businesses must be meticulous about documenting the legal status of new hiring and maintaining the records in the event of an ICE audit.  A Georgia business owner must make I-9 documentation available for inspection by officers of the Department of Homeland Security (DHS) and the Department of Labor (DOL) in the event of an audit. Our Georgia business lawyers are well versed in all compliance issues including business immigration compliance.  A growing number of Georgia businesses face potential litigation for allegedly failing to comply with immigration compliance laws.  Our experienced Georgia business litigation attorneys are prepared to protect our business clients against such allegations through sound legal planning and aggressive advocacy.