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It’s no secret that President-elect Donald Trump intends to carry out what he has called the largest mass deportation in U.S. history shortly after taking office. U.S. employers, across industries with a relatively unskilled workforce—should immediately prepare for ramped-up government immigration enforcement in the workplace. Employers should get ready to endure a painful process, a sudden loss of workers, and administrative and criminal penalties.
Many employers with a substantial nonprofessional workforce have accumulated workers who may be unauthorized to be in the U.S., whether they entered the country undocumented or overstayed. A rising number of employers have opted or been required to use the government’s electronic E-Verify system, which performs real-time validation against governmental systems.
The U.S. Department of Homeland Security (DHS) has the authority to appear at a worksite with a notice of inspection and/or subpoena and demand that the employer produce the following within three days: historical lists of workers with dates of hire and termination, payroll and tax records, company ownership information, staffing vendor information, all I-9 forms required to be on file, and any copies of identity and authorization documents presented by employees. Immigration and Customs Enforcement (ICE) will have an expanding national team to inspect these documents.
I-9 Audits: The ‘Silent Raid’
ICE sanctions are one problem that may arise from an audit, and these sanctions may be imposed for having incorrectly completed forms, for missing forms, and even for knowingly hiring unauthorized workers. Sanctions can range from $300 to $30,000 per worker, plus debarment from federal contracts, and are often disputed. Employers get 10 days to correct technical errors, but ICE takes an expansive view of what counts as substantive errors that can’t be corrected to avoid penalties. ICE can fine employers for failure to comply with extremely technical requirements for electronic storage of completed forms. But even perfectly innocent employers face the risk of a sudden loss of workers following a government raid.