Wednesday, July 1, 2009

I-9 Audits: Catch-22 for Employers

The U.S. Immigration and Customs Enforcement (ICE) announced today that it served Notices of Inspection upon 652 businesses around the country. Compare this with the 508 businesses which received Notices of Inspection in fiscal year 2008.

An ICE spokesman told the press: "Part of the strategy is to show businesses that we mean business."

The new Obama policy substituting audits for raids, and civil penalties on employers rather than criminal penalties on workers is a step in the right direction. It may even set the stage for comprehensive immigration reform by showing that the administration is serious about immigration enforcement.

We link to the ICE press release and the news story from our "Employers' Immigration Guide" at

Notices of Inspection are served on employers to compel them to surrender their I-9 forms to the government. The I-9 form verifies the identity and the employment authorization of each employee hired by the company.

However, employers do not have the authority to question the legitimacy of the documents that are presented to them unless the documents are obviously false. An employer who attempts to do more risks great sums of money for violating the document abuse and/or anti-discrimination laws. Ask Jose Sanchez for more or different documents than Joe Smith, and you are asking for trouble, big trouble. See our article "INS vs. INC." at

The truth is that most "undocumented" workers are ready, willing and able to produce the required documents when an employer presents them with an I-9 form.

So, in the next few weeks, when ICE inspects the I-9 forms of many thousands of employees who work for these 652 companies, the agency will learn (No big surprise.) that thousands of these documents are either false or belong to others.

The workers will lose their jobs, but if history is any guide, they will simply pick up and start looking for new jobs.

The employers can not be fined unless their I-9s were done improperly or not at all. In most cases, they will receive fines for being sloppy, not for being "unscrupulous". Of course, if an employer has actual knowledge that an employee is illegally present in the U.S., he could face criminal penalties, but rarely does ICE have enough evidence to press criminal charges.

Earlier today, I was interviewed regarding this subject by a newspaper reporter. As a former INS prosecutor, I have represented quite a few companies facing I-9 audits.

I spoke with one of my former clients today. His company underwent an I-9 audit when they applied for labor certification for three undocumented workers. I remember meeting with the INS investigator and handing him a pile of I-9 forms. The INS could have subjected the employer to many thousands of dollars in fines. Instead, we agreed to enroll the employer in what is now called the "E-Verify" program, and the government agreed to waive all fines.

However, the employer lost many of his most valuable employees, and it took years for the business to recover. How about the employees? They ended up working for his competitors.

Who came out ahead in the end? No one as far as I'm concerned.

Our broken immigration system will not be fixed by penalizing employers who are trying to abide by the law, and forcing many of their workers to find new jobs. If there was ever a time to amend our laws to conform with the laws of the free market, it is now.


  1. Great ending. You shoul write about H1 scrutiny now even for extensions and transfers whoa re already here for 4-5 years legally.

  2. who is going to do something for the legal immigrants that have paid thousands of dollars to USCIS and to IRS and still don't know when they will get the Green Card!
    Can we think more how to help the Legal imigrants?? They are alread employed and paying taxes and will not take any american's job cause they are already employed, but the USCIS don't have a visa to get them the Green Card. Is that so difficult to fix?

    Besides, we will have to wait 5 for years after the Green Card to get the citinzenship?!?!? And how about the already 8, 9 or 10 years living in this Country, paying all taxes and all fees to get the Green Card. Those years won't count for citizenship? Why?

  3. I happen to be one of those people that clelia is talking about and I can't tell you how frustrating it is seeing people who come to this country illegally after me and have gotten their green cards already while I am still waiting for my date to become current. Ironically, instead of becoming shorter, the wait keeps getting longer. These people who came here illegally are laughing at me. How in the world can one think that will stop the illegals from coming to this country when the very people who are obeying the law and doing everything the right way get penalized this way. I sure hope they realize this sooner rather than later, or this country will definetely see the consequences later.

  4. i am also a victim of this like clelia and thekocajs. I am here for more than 10 years and don't have green card. i know some who came after me stayed illegally for years and applied when clinton administration issued amnesty by paying a simple 1000 dollar fine and got the green card 5 years back and now they are citizens. Now they say for me another 8 years coz the priority date is not current. i was legal from the day one and paying taxes but not getting a fare shake. I could not answer my parents back home when they see people getting gc. within 4 to 5 years. I have become so frustrated that i may go back to my country but definitly with some heaviness in my chest. I love this country and i want to live here and obeying the law but, i am still waiting in the line. The law should change. One who stayed in this country legally and paying taxes for certain number of years may be 5,6,7 etc., and no criminal charges against them , they should automatically get the gc and then citizenship. this is my humble feeling and thought. Law makers should seriously think about it.this is voice of many like me. thank you and keeping my fingers crossed. balaji