Recap of the FBA Workplace I-9 Enforcement Conference
Last week, I was fortunate to attend and speak at the 6th Annual Workplace Enforcement and Immigration Conference, which is run by the Federal Bar Association (FBA) Chicago Chapter. With speakers ranging from government officials in charge of enforcement to immigration and employment law attorneys, the conference offered an “all-you-can-eat” buffet of I-9 history, case law, and remediation tips to help deal with this ever-expanding area of employer compliance. And wow, has the landscape been changing! During the last two years, we have seen unprecedented legislative and regulatory activity relating to Form I-9 and E-Verify compliance from just about everyone – Congress, the White House, the Department of Homeland Security, the Justice Department and even a majority of state legislators. The result has been a virtual patchwork of employment verification requirements which are difficult to track, let alone maintain. While many of these subjects have been covered recently in this blog, I’m going to highlight some new information (some publicly announced, some not) which came to light during this recent conference. Let’s get started! ICE Audit Activity While our conference was under way last week,Secretary Janet Napolitano testified before the US House of Representatives Committee on the Judiciary about worksite enforcement and E-Verify. According to her statistics, ICE has audited more than 6,000 employers, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions since fiscal year 2009. In this fiscal year alone, ICE also criminally arrested 221 employers accused of violations related to employment, which was an agency record. Now after hearing that, the first questions on many peoples’ mind at the conference was who is ICE auditing, how are they conducting the audits, and what have been the results. This question is never easily answered (ongoing investigations are of course sensitive and confidential), but we did learn about some recent developments and advancements on the ICE enforcement frontier. First, ICE’s mega I-9 audit fusion center in Crystal City, VA (known formally as the Employment Compliance Inspection Center) is in full swing with at least 25 auditors working to support agency field offices around the country. As we previously reported, the ECIC was designed to handle audits of the largest employers, many of whom previously escaped I-9 attention due to their size and geographic dispersion. At present, the ECIC will handle audits where there are 1,000 or more I-9s to review, enabling ICE to greatly expand their compliance net. According to the head of the ECIC, the auditors will review I-9s and work closely with SAC field agents, but they will not set or advise on the appropriate fine amount (this being left for the SAC to determine). We also received “soft” confirmation that there will indeed be an additional I-9 Audit wave (or waves) in the very near future from ICE which will target employers of all sizes, industries, and profiles. As we’ve discussed in the past, ICE frequently emphasizes that first and foremost it will target organizations suspected of employing unauthorized workers through credible leads. While there is no reason to doubt this, it’s important to note that we’ve also been seeing employers with seemingly “squeaky clean” I-9 records receive the dreaded Notice of Inspection, perhaps due to some other related compliance issue or failure. In addition, it’s no secret that ICE likes to go after “name-brand” employers as it sends a very clear message that no organization is “above the law.” “It’s about the paperwork, stupid!” By now, we’re all familiar with the famous catch-phrase used by Bill Clinton in 1992, which has taken on a life of its own in American political culture (with other words frequently replacing the word, economy). As one of our speakers discussed, this type of phrase is also quite applicable in the I-9 compliance arena, especially when you consider how often I-9 problems are ignored or de-prioritized within a company’s culture. How many times have you heard someone say “Well, we don’t have unauthorized workers, so I-9 compliance is not a problem for us”…or “We’ll never get audited since we don’t employ foreign workers.” The reality of course is ICE’s focus has shifted over the years, and the employers (rather than the individuals) are now in the compliance cross-hairs. The resurgence of I-9 audits and civil penalties as the government’s weapon of choice casts a much wider net than the former “raid” approach, potentially affecting many well-intentioned employers who view I-9 compliance as simple “paperwork.” Ironically, it’s this paperwork which ICE is now routinely reviewing to enforce their ultimate goal of maintaining a legal workforce. As we discussed during our I-9 case analysis yesterday, ensuring “compliant” I-9 paperwork is no easy task either -and ICE can fine you for any substantive violation, regardless of whether it was completed for a foreign national or US worker. Establishing a Culture of Compliance To finish the sentence, is easier said than done. However, several of the speakers discussed the importance of elevating I-9 compliance beyond mere “due diligence” to a realm where the entire organization understands the basic rules and principles. Too often, I-9 knowledge is only maintained at the top, and the people in the field are not aware of the rules and processes. The speakers advised that the road to I-9 compliance for most organizations should first start with a thorough self-examination of existing I-9s, E-Verify submissions (if applicable), standard operating procedures, and past practices. After reviewing an employer’s I-9 compliance program, attorneys will be able to guide the employer through remediation efforts and assist in establishing a regular training program and uniform company policies. Electronic I-9s to the Rescue Several panels (including my own) explored the benefits and challenges of implementing an electronic I-9 system to prevent paperwork penalties and ensure compliance with frequently-changing rules. With increasing E-Verify use, there is also a strong desire to prevent transcription mistakes (which often happen in paper) and to enforce E-Verify deadlines and TNC processing. One of my co-panelists described in detail the process that his organization undertook to select an I-9 vendor, which included examining strict compliance with the regulations, robust security, and of course, ease of use and effectiveness. His company was also very good about conducting traditional due diligence on the vendor’s corporate capacity and long term viability – especially important when you see the trials and tribulations of other systems. One of the most interesting questions for users of electronic I-9 systems, however, was raised much earlier in the day when an attorney asked our ICE representative what their experience has been in auditing such systems during an investigation. Not surprisingly, ICE is now seeing electronic I-9 programs with greater frequency as employers continue to go paperless for all of the reasons mentioned above. While she said they were happy with a few of the systems, there were others which were potentially running afoul of the regulations. In particular, she noted that many auditors in the field are closely scrutinizing the systems to ensure they contain the required audit trails of all I-9 changes as well as proper electronic signature methodologies. Another area of concern were systems that “over-automated” the process or substantially changed the form by including tax or other non I-9 related information. The message here appeared to be clear: electronic I-9 systems can be a great tool, but “buyer beware” if you choose a system which does not follow the regulations. On the HorizonForm I-9 and E-Verify rules and regulations are constantly changing, and once again, we got wind of a few developments in the works. First, the USCIS will be implementing a “smart I-9” form on their website which will allegedly assist employers in proper completion of the form. For those of you who have been watching this space closely, you may recall that this idea has been floating around for a few years now. In a 2009 letter on E-Verify, the USCIS announced that “the Verification Division is exploring the development of its own electronic I-9 form to help streamline the Form I-9 and E-Verify processes. The Government Paperwork Elimination Act (Pub. L. No. 105-277, 44 U.S.C. § 3501) mandates that federal agencies use electronic forms, when practicable. In fact, ICE permits and encourages the use of an electronic I-9. When implemented (currently scheduled for FY 10), the USCIS electronic I-9 will populate the E-Verify data fields and allow employers to save an electronic version of the I-9 on their desktops and information systems and/or print a paper version of the I-9.” Needless to say, FY2010 was a bit ambitious. It’s also unclear whether this new smart form will do exactly what they planned earlier AND if it will follow the ICE regulations on maintenance of electronically generated forms. At best, I have a feeling it may just be a guide which helps small employers complete the form and print for signature. Large employers, however, will most likely demand a more complete solution for electronically generating, storing, and securing I-9s across an entire organization and migrating/correcting paper I-9s. Last but not least, ICE promises that they are still working on “new regulations” which will provide much-needed guidance on correcting technical and procedural violations on I-9 forms. As we saw yesterday, this guidance is long overdue, so we’re all very hopeful that we’ll soon know what a technical vs. substantive violation is without having to consult a memo, an internal guide and a few cases to boot. Stay tuned for more updates on our favorite one-page form!