The United States Government has ramped up its enforcement efforts in the area of Immigration Law significantly in recent years. As one tactic to increase its enforcement activities, the Government has begun to increase the number of Form I-9 Inspections. In April 2018, federal officials arrested or detained 97 Tennessean workers at a meat-processing plant outside of Knoxville as part of a Form I-9 Inspection, arguably the largest workplace raid that the Government has conducted in approximately ten (10) years. If you are an employer seeking to employ immigrant workers, it is imperative that you understand what Form I-9 Inspections are, and perhaps most importantly, how they can affect you and your business.
The Immigration and Nationality Act (“INA”) requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, 1986. See 8 U.S.C. § 1324a(b). The Government accomplishes this verification task by using the Employment Eligibility Verification Form I-9 (“Form I-9”). See 8 C.F.R. § 274a.2. By law, employers are required to maintain for inspection original I-9 Forms for all current employees. In the case of former employees, employers are required to retain I-9 Forms for a period of at least three (3) years from the date of hire or for one (1) year after the employee is no longer employed, whichever is longer. After this period has elapsed, the records can be purged.
When the Government decides to perform a Form I-9 Inspection, it will first send an employer a Notice of Inspection (“NOI”). Federal officials have the power during the course of the inspection to arrest or detain any undocumented workers located in the workplace. Depending on the nature of any violations that are found, as well as the employer’s participation in the ICE Mutual Agreement between Government and Employers (“IMAGE”) program, regular penalties for employing unauthorized workers can range from $224 – $4,473 per worker. Although the Government can impose criminal penalties on employers for these violations under certain circumstances, it appears that the Government has been reserving criminal prosecutions only for employers engaged in a repetitive pattern of misconduct.