President Barack Obama's executive actions on immmigration could complicate audits of the federal eligibility for employment forms, says an immigration attorney.
Known as I-9s, the forms are one of the most vexing obligations of employers because while workers fill them out employers must verify their accuracy and produce the forms during an audit.
The president’s actions are based on his discretion as president in the way laws are enforced. In this case, the Obama administration will prioritize the deportation of recent arrivals and felons, but other enforcement changes are more ambiguous, says Lori Chesser, a senior shareholder at the Des Moines-based Davis Brown Law Firm.
One of the enforcement provisions in the executive actions calls for more focus on workplaces. "We don’t know what that is yet and we don’t know if that’s aimed at I-9 audits,” she says.
The president's actions will put more immigrants with work permits into the labor market, too, and "that will be good,” says Chesser, but it may take a year for employees to receive new permits.
She warns that enforcement changes could kick in at any time.
During its first five years, the Obama administration drove the annual I-9 audit total dramatically higher, from about 500 to more than 3,000. Several construction employers have been hit with big penalties.
For example, the US Dept. of Justice’s Office of the Chief Administrative Hearing Officer assessed $228,300 in fines in April against Americus, Ga. -based M&D Masonry. The hearing officer cited the contractor for 338 violations of the Immigration and Nationality Act, related to failure to ensure proper completion of and failure to produce the I-9 forms.
M&D Masonry's fine is one of the highest arising from an I-9 audit by the Dept. of Homeland Security's Immigration and Customs Enforcement (ICE) unit.
In recent years the chief hearing officer has also levied stiff fines against Woodinville, Wash.-based Ketchikan Drywall Services Inc., ($173K), San Antonio-based March Construction ($17K) and Port Charlotte, Fla.-based Platinum Builders of Central Florida ($23K).
The most recent construction company to face form I-9 audit violation allegations is Speedy Gonzalez Construction Inc., based in Glendale, Ariz. On Sept. 19, the contractor was found liable for 179 violations; the assessed penalty has not been announced.
ICE officials could not answer questions in time for this story. ENR has also filed a Freedom of Information Act request for form I-9 audit notices.
Industry groups have been less-than-supportive of the president's planned actions because they fear the temporary fix will hinder the possibility of long-term immigration law reform.
What comes next is unclear.
Assuming the president’s immigration actions, announced on national television Nov. 20th, survive Republican control of both legislative bodies, the resulting increase in deferred deportation actions and the promise to “crack down” on illegal border immigration could complicate future ICE I-9 form audits.
The president's planned actions envision an expansion of the Deferred Action for Childhood Arrivals (DREAM) Act and offers of similar deferred action deals to parents of U.S. citizens and legal residents.
But qualifying for deferred action may reveal more to employers than they wanted to know.
Ignorance May Be Bliss
Employer liability for violations are generally lower if employers aren’t aware that employees lied on forms I-9 or provided false documents, says Davis Brown's Chesser.
“When you get an I-9 audit, you’re sometimes surprised to realize that they weren’t really good documents,” says Chesser. “You might not even get a fine if you did the I-9 right. It’s their [the employee's] fault that they gave you bad documents.”
But employers encouraging employees to apply for deferred action or the proposed three-year work permit, or any employee notifying an employer of their application, might expose themselves to liability.