Queen of I-9 Audits: An Interview with Attorney Wendy Padilla-Madden

With all this talk about I-9 audits and enforcements, today’s Day in the Life of Series highlights attorney Wendy Padilla-Madden of Balch and Bingham LLP.  Ms. Padilla-Madden shares with us how the past few years of government enforcement activities have impacted her U.S. employer clients, painting a pretty grim picture. Over the last two years, she has audited over 30,000 I-9 Forms (and counting) for her clients. In essence, Ms. Padilla-Madden knows a whole lot about this area of law.

1) Do you feel the immigration climate today, with the emphasis on enforcement, has helped or hurt your employer clients?

I have always felt an increase in government regulations can be detrimental to a vibrant economy and business development planning. Most businesses in the U.S. want to be compliant, but when compliance is like walking a tightrope, adding on a mountain of unclear regulations only makes finding the right balance harder for corporations. Not only is the regulatory arena on a constantly changing platform, but we also have these processes and programs that are ever-changing! Just look at the Form I-9. How many versions have there been? For example, in 1996, the then INS published changes to the I-9 list of acceptable documents in the Federal Register but the actual form was not updated for over ten years! These types of changes are very difficult for employers to follow. Then there is the issue of balance – there is conflicting guidance from government agencies on employers who don’t act quickly enough or don’t do enough (and may find themselves in the middle of an ICE audit) and employers who go too far and make spur of the moment decisions (and may find themselves on the other end of a lawsuit filed by the DOJ). Again, I think walking this tightrope makes it very difficult for employers.

Also, many states are now passing their own immigration laws which add to the complexity of immigration compliance. The states want to mirror the federal laws but they can’t quite get there. If you look at Alabama’s immigration law, it has been in place for less than one year and the Legislature is already drafting amendments to clarify the multiple and complex provisions contained in the 70 pages. Employers want to comply but they don’t want to be stuck in a quagmire of regulations, they just don’t have the resources to devote 100% of their attention to every single area of compliance. Our nation needs comprehensive immigration reform, which will result in efficiencies and more broad-based understanding of the laws, and higher levels of compliance.

2) What types of burdens have increased focus by ICE on enforcement and compliance had on your clients?

On the enforcement side, until the day we have comprehensive immigration reform, which I don’t see coming soon, there will be increased enforcement and compliance audits of companies. Recently, ICE sent out a new wave of 500 audits.  To be ready, employers need to make sure their I-9 Forms are in order. A good software program helps employers accomplish this, but the problem is the vast majority of electronic I-9 systems are non-compliant, except for just a few. You have to understand that as it refers to electronic I-9 vendors, ICE’s position for employers is crystal clear: “buyer beware.” ICE will expect an employer be a savvy buyer, complete its due diligence and determine the system it selected was compliant.  If an employer fails to do so, ICE may end up invalidating all of the Forms I-9 created in that non-compliant software system, and you don’t want to end up there.  Employers must keep in mind, these requirements and the corresponding fines for failure to comply apply even if they do not have unauthorized employees.

The burdens have definitely increased, and part of the reason, as mentioned above, has to do with passage of state-by-state immigration laws.

The main focus of these state laws is to remove any unauthorized foreign nationals. There are hefty consequences for violation of the laws, usually resulting from complex enforcement schemes. As a result, there appears to be a knee-jerk reaction from some employers to simply re-I-9 or E-Verify all their employees. This is very erroneous advice. It’s a very dicey area for traditional labor and employment attorneys who may not have the bandwidth to learn the myriad of rules and understand the nuances in the immigration laws. It takes being an immigration specialist; I spend hours each day keeping up with the different changes to the I-9 Form and E-Verify and I’ve tracked these changes since 2005.

3) Have there been any legislative, regulatory or administrative changes in immigration rules/laws that have benefitted your clients?

None particularly come to mind.  I think a departure from the huge raids under the Bush Administration is a good thing, but they were replaced by the “silent” raids during the current Administration, which targets many more employers. If you look on the benefits side, everything is harder. You have to provide even more documentation and almost every petition we file looks like an encyclopedia!

[What about the extension of TNs to 3 years?] Ok maybe a few, but they are minor, like now you can extend TN visas for three years, not just one.

 4) With H-1B season now upon us, what are your predictions for the future? Do you think the H-1B visas will get used up quickly?

I don’t think so. If you can hire an individual who doesn’t need a visa, especially in a downturn economy, why would you go through the expense of filing an H-1B, an L or another visa type? When businesses can locate and hire locally qualified candidates who don’t require visas, they usually exercise that option because it saves them a lot of money in attorney and government fees. In fact, the data in recent years where H-1B quotas have taken a long time to get used up demonstrates the industry can police itself. Market forces affect the quota as much asgovernment interference, which makes for a good case to eliminate the H-1B quota. There is already too much government regulation.

Thank you Ms. Padilla-Madden for highlighting the complexities of this practice area. I’m wondering how many other practitioners are considering getting in this area of practice? I’d love to hear from you. Sign up for our Day in the Life Of Series here.