of no-match letters to be an indication
that an employer might have questionable
hiring and record-keeping practices. An
employer’s failure to show specific action
in response to a no‑match letter could,
therefore, be considered by ICE as a significant
negative factor when determining if
enforcement actions, including fines and
criminal prosecution, should be taken.
The realities: Escalating fines,
labor shortages and possible
delay damages
Regardless of politics and the availability
of labor, knowingly or unknowingly hiring
undocumented workers has become
costly since ICE has increased fines.
Knowingly hiring undocumented workers
carries fines between $539 and $4,313
per worker on a first offense. Failing to
properly complete the Form I-9 carries
a fine of $216 to $2,156 per document.
Employers found to engage in a pattern
or practice of hiring or recruiting undocumented
workers may be penalized up to
$3,000 per undocumented worker and
receive six months in jail.
In the construction industry, immigrant
labor represents a significant portion of
the workforce. Statistics indicate that foreign
born workers represent 30 percent of
the construction trades.4 The reality for
construction employers is that without an
adequate visa system in place to meet labor
shortages, employers in certain industries
are left with little to no options when it
comes to finding documented workers.
The Associated General Contractors
of America has long been pushing for an
overhaul of the U.S. immigration system in
order to help contractors supplement their
workforces with temporary workers from
abroad. Recent proposed legislation seeks
to create an immigrant visa system for
non-farm workers which would establish
the first-ever visa program for less-skilled
construction labor.
Current immigration law requires
employers to ensure that employment
eligibility documents appear to be valid,
while federal law prohibits employers
from requiring specific types of identification
from workers. Currently, employers
are required by law to maintain for
inspection original Employment Eligibility
Verification Forms or I-9 Forms for all
current employees.5 In the case of former
employees, employers are required to
retain all I-9 forms for at least three years
from the date of hire or one year after
termination, whichever is longer. Being
unprepared for a Form I-9 audit could
prove costly and interfere with existing
construction contracts, resulting in costly
delays. When dealing with an I-9 audit,
preparation and an experienced employment
and immigration attorney are key.
Form I-9 Compliance Program
Compliance is about making sure to follow
the I-9 directions and making sure your
business is not letting applicants get by
with shoddy documentation, no documentation,
or requiring extra proof if they suspect
someone is undocumented; while at
the same time, not imposing requirements
above and beyond what the I-9 requires,
which can result in a lawsuit by the government
or an applicant.
To protect against these issues, funnel
I-9 documentation and retention through
one person within your organization
and make sure that person is trained to
properly complete I-9s. The government
finds, on average, five errors in each I-9
when it does an audit and each error
can result in a fine. Create and maintain
LEGAL
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