Manager narrowly escapes jail time for making a false statement on an I-9 Form

Human resource and hiring managers are becoming painfully aware of the potential dangers lurking behind the Form I-9 and E-Verify process. It seems like every other week we learn about a new worksite investigation, a discrimination settlement, or the culmination of a costly appeal before an administrative law judge.

For the most part, these tales of woe stem from procedural failures such as missing or incorrectly completed I-9s, which can lead Immigrations and Customs Enforcement (ICE) to assess “paperwork” penalties and fines. Make no mistake about it – these fines can be costly, sometimes in excess of $1,000 per flawed form. But ultimately, they pale in comparison to potential criminal penalties that ICE may pursue as part of a larger worksite investigation.

Think you’re immune from such a dire situation? Read on to learn about a manager who made a terrible mistake on an I-9 form and almost paid the consequences.

The Case of the False Attestation

Last week, the Department of Justice announced that a woman in Western New York was sentenced to one year of probation for submitting a false and fraudulent written statement on an employee’s I-9 form. According to the case record, the sentencing occurred as a result of a worksite enforcement investigation by ICE. Let’s take a closer look.
The defendant, Sara, manages a small labor services organization in Sodus, NY (a small town located midway between Rochester and Syracuse). It’s November 5, 2010, and Sara is about to make a very big mistake. She’s in the process of hiring an employee, and she knows he is not authorized to work in the United States. It’s a clear violation of the law, but then she takes it a step further.

Sara remembers that all new hires must complete the Form I-9. So she pulls out the 1-page document and proceeds to assist the employee in completing section 1 – biographical information, address/contact information, and of course the all-important citizenship attestation. And here is where things go awry – according to the record, Sara then proceeds to mark that the employee was a lawful permanent resident, despite the fact that she knew he wasn’t authorized to work. Following the form’s instructions, she then moved to the bottom of the page and completed (and signed) the preparer/translator section.

Sometime after that, ICE initiated an investigation against the labor services company for potential issues with hiring undocumented workers. While the facts of this investigation have not been made public, we now know that Sara was in fact criminally prosecuted for making that one fatal error on the I-9 form. So how (and why) did this bubble up to a criminal case?

ICE Worksite Investigations

A few years ago, ICE released an internal worksite strategy playbook (called “the ICE Guide to Worksite Enforcement Investigations”), where they explained (in no uncertain terms) that I-9 audits are a great mechanism by which they can identify any violations that might lead to criminal prosecution of an employer. These typically include threats to national security and of course, the harboring, smuggling, concealing, or transporting of unauthorized individuals.

But that’s not all…the guide also encourages ICE to make use of the federal “false statements to government agencies” statute which is set forth in Title 18 of the United States Code under section 1001(a)(3). This statute prohibits knowingly and willfully making false or fraudulent statements, or concealing information, in a matter within the jurisdiction of the executive, legislative, or judicial branch of the US government. Pretty broad indeed! Many famous individuals have been convicted in a wide variety of contexts using this law, including Martha Stewart, Rod Blagojevich, and Bernard Madoff to name a few.

The statute has teeth as well. The maximum possible sentence for a violation of section 1001 includes a term of imprisonment of 5 years, a fine of $250,000, and a 3-year term of supervised release.

So how does this work in the I-9 context?

In order to prevail in a prosecution under Section 1001, the government must prove the following: (a) the defendant made or used a false writing or document; (b) the writing or document contained a statement or entry that was false, fictitious, or fraudulent; (c) the statement entry was material; (d) the defendant acted willfully and knowingly; and (e) the writing or document pertained to a matter within the jurisdiction of the executive, legislative, or judicial branch of the US government.

In the case at hand, Sara admitted to each one of these items above as it related to her ill-advised I-9 completion. She admitted that she had falsified the form; the employee was in fact unauthorized to work; the attestation was material (since that’s what the I-9 is all about); she knew what she was doing; and the matter was now within ICE’s jurisdiction.

Fortunately for Sara, the government ultimately accepted her plea agreement (as negotiated by her attorney) and sentenced her to only 1 year of probation. The case, however, could have ended very differently – especially if she had exhibited a pattern or practice of falsifying I-9s or if the record had indicated other culpable conduct.

Don’t Forget E-Verify!

Are you currently participating in E-Verify (either in one or multiple locations)? Then you have to be doubly careful when providing information to the government. Under the E-Verify Memorandum of Understanding (MOU), the government specifically notes that “any inaccurate statement, representation, data or other information provided to DHS may subject the Employer, its subcontractors, its employees, or its representatives to: (1) prosecution for false statements pursuant to 18 U.S.C. 1001 and/or; (2) immediate termination of its MOU and/or; (3) possible debarment or suspension.” (emphasis added)

Translation: you can get yourself into even more hot water if you mess around with a false statement in E-Verify!

Conclusion

When employers think about I-9 compliance, there is a tendency to minimize its overall importance with phrases like “it’s just paperwork”. Or, “I’ll never get audited.” My personal favorite though is “what’s the worst that can happen?” As we’ve described today, the worst that can happen is actually pretty bad, particularly if ICE decides to pursue a criminal investigation relating to false statements.

Employers are well-advised to consider these areas carefully and follow best practices for reviewing and revitalizing their I-9 and E-Verify compliance programs. Here are a few quick tips:

  1. Work closely with experienced immigration counsel to identify any weaknesses in your I-9 and E-Verify hiring process – including any rogue employees who may be improperly assisting in the completion of section 1;
  2. Develop standardized policies and procedures which clarify the potential consequences of an I-9 error (deliberate or otherwise);
  3. Start using a smart electronic I-9 and E-Verify solution which can make it abundantly clear (through validation alerts and help text) that you’re signing a government form under penalty of perjury. For when it comes to I-9 compliance, there’s no such thing as being too careful!

Want to learn more about ICE’s worksite enforcement strategy? Cilck here to download the redacted memo which was released pursuant to a Freedom of Information Act request.