I-9 Audits: What’s the worst case scenario?

[Editor’s Note: today’s blog is courtesy of Josie Gonzalez of Gonzalez & Harris.] With the reported surge in Immigration and Customs Enforcement (ICE ) I-9 audits of companies suspected of hiring unauthorized workers, I fully expect to get the frequently asked question: “Let’s assume the government can prove that I know or should have known that some of my employees are undocumented: what is the worst case scenario for me and my management staff”?  This question may be asked with greater frequency in the coming months because recent news reports announce that ICE will conduct over 1000 I-9 audits of employers in varied industries in order to determine compliance with employment eligibility verification (I-9) requirements. Not necessarily listed in the order of severity, nor all-inclusive, here is my response: Criminal Liability: Who goes to jail?  The ICE dragnet parallels other white collar criminal prosecutions, enveloping culpable employees at all levels.  Starting from the bottom, ICE can arrest the alien worker for making false attestations on the I-9, and perhaps for identity theft if valid documents belonging to others were used to show work authorization. Next, the supervisor who participates in hiring of the worker is a target if he employs someone whom he knows is working illegally and using false documents.  Such workers may be a supervisor’s relatives or friends who are in desperate need of employment. Third, the Plant Manager who has production goals and, wanting the best and most available worker for the job, sends the message to hire the best person regardless of immigration status.  ICE will also focus on the Human Resource Manager who signed the I-9 under penalty of perjury attesting that “to the best of my knowledge the employee is authorized to work in the United States,” and look for evidence of perjury.  Lastly, from the CFO to the CEO, executive officers are clearly not beyond the reach or interest of the government if there is reckless inattention to their immigration responsibilities and explicit or implicit encouragement to employ workers regardless of their immigration status. Criminal penalties can range from six months to ten years or more imprisonment and fines ranging from $3000 to half a million or more. Asset forfeiture: Give me your bank account, your equipment, your buildings and your home:  Over the last five years, ICE has invoked the controversial asset forfeiture laws to punish employers found to have knowingly employed more than 10 undocumented workers.  It shares the money with any government entity that assisted in its investigation and uses the money to conduct further investigations and purchase equipment and sophisticated forensic technology. Shareholder class action lawsuits:  If publicly traded, and loss of workers and revenues result from ICE’s investigatory efforts, shareholders might allege that corporate executives knowingly violated the immigration laws, disregarded their obligations to shareholders, and failed to implement management controls to ensure the hiring of only authorized workers, thereby causing economic injury to the shareholders. Reduced Revenues:  The loss of workers, inability to provide services or timely manufacture products per contract specifications, tarnished reputation, legal fees, claims of dismissed worker for worker’s compensation benefits or alleged wage and hour violations, and more may all have an impact on the employer’s bottom line. In the event you have the misfortune to receive the dreaded knock on the door by ICE agents demanding your I-9s, don’t be fooled into thinking that it’s all about surrendering perfect looking, i’s-dotted and t’s-crossed I-9s.  Less than perfect I-9s won’t result in the worst case scenarios occurring.  ICE is visiting because it suspects you are hiring unauthorized workers; the focus will be gathering the evidence and conducting the  covert investigations that will substantiate its suspicions.