(Originally published in the December 2013 Housing Journal)
Immigration Information for Builders
In March of 2013 the U.S. Citizenship and Immigration Services (USCIS) published a revised Employment Eligibility Verification Form I-9 for use. All employers are required to complete a Form I-9 for each employee hired in the United States. Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions to both employees and employers.
- Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.
- Employers were allowed to continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.
- After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.
The revision date of the Form I-9 is printed on the lower left corner of the form. Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.
As the economy in New Mexico begins to pick up steam, and many builders are finding themselves in the position of needing to hire additional employees, it would be advisable for everyone to review the following updated immigration information from NAHB:
The 1986 Immigration Reform and Control Act (IRCA) makes it unlawful to knowingly employ undocumented immigrants who are unauthorized to work in the United States.
The Department of Homeland Security (DHS) on April 30, 2009 released a new “Worksite Enforcement Strategy” amending immigration law enforcement priorities that were promulgated in April 2006 by the previous Administration and focused on the arrest and removal of undocumented immigrants.
The new strategy de-emphasizes the use of raids on work sites and mass arrests of undocumented immigrants on construction sites.
Instead, U.S. Immigration and Customs Enforcement (ICE) agents have been instructed to focus on the criminal prosecution of employers who knowingly hire undocumented workers. Smugglers, traffickers, those who harbor undocumented immigrants, and those who mistreat immigrant workers are designated for special attention.
In addition, ICE agents have been instructed to follow high investigative standards and to “obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office to prosecute the targeted employer before arresting employees for civil immigration violations at the work site.”
Although work site raids are still possible, humanitarian guidelines requiring the employment of social service agencies to ensure that detainees and their children are not placed at risk now must be followed whenever enforcement actions involve 25 or more undocumented workers. (Previously, the guidelines took effect only when enforcement actions involved more than 150 undocumented workers.)
Under the new strategy, employers have experienced a heightened scrutiny of their hiring practices in the form of increased I-9 audits. Since the new Workforce Enforcement Strategy was implemented in 2009, ICE has increased the number of audits in each succeeding year culminating in more than three thousand I-9 audits conducted in 2012.
Employers are advised to faithfully comply with the I-9 verification process for new hires, to use current forms and to adhere to all record-keeping requirements in anticipation of an increased possibility that they might be subjected to an I-9 audit.
In light of these 2012 audits, NAHB has prepared the following Q & A sheet to help builder-employers understand their rights and responsibilities.
Q. What is a Form I-9?
A. Federal law places an affirmative duty on employers to verify the identity and work authorization of all persons who are hired. This is accomplished by the mandatory completion of Employment Eligibility Verification Form I-9. Employers are required to keep a completed Form I-9 on file for each of their current employees who were hired after November 7, 1986. The current form I-9 (effective March 8, 2013) can be downloaded at the USCIS website: www.uscis.gov/files/form/i-9.pdf
Q. When must the I-9 be completed?
A. Section 1 of Form I-9 (information supplied by the employee) must be completed and signed by the employee at the time of hire. Section 2 of Form I-9 (the employer’s review and document verification) must be completed and signed by the employer (or an authorized representative) within three (3) business days of the hire.
Q. How long must Form I-9s be retained?
A. Employers are required to retain each Form I-9 for one (1) year after the corresponding employee is terminated, or for at least three (3) years from the date of the hire, whichever is later.
Q. What is an I-9 audit?
A. The Department of Homeland Security’s Immigration and Customs Enforcement Agency (ICE) — formerly the INS — has the authority, without the necessity of a subpoena, to inspect any employer’s Form I-9s to verify compliance and to check its accuracy. This inspection is called an I-9 audit.
Q. Can ICE conduct surprise I-9 audits?
A. No. It is possible that an investigator could show up unannounced at a worksite, but the investigator cannot demand an immediate production of I-9 records. Under the law, an employer is entitled to receive a three (3) day notice prior to the I-9 audit. In the past, it has been possible to negotiate with ICE for longer periods before the I-9 audit takes place, perhaps as much as 10-12 business days.
Q. Are builder-employers responsible for their subcontractor employees’ I-9 compliance?
A. No. Under the law, builder-employers are not required to complete Form I-9s for the employees of their subcontractors, or to monitor their subcontractors’ Form I-9 compliance. But, builders should be aware that it is considered to be an unlawful circumvention of the immigration laws if the builder actually knows that any of its worksite subcontractors are employing undocumented immigrants.
Q. Do builders have to produce their subcontractors’ employment records, or a list of their subcontractors?
A. It is not expected that a builder would have possession of a subcontractor’s employment records to produce at an I-9 audit, and a builder is not responsible for securing these records from its subcontractors, or for assembling its subcontractors at any location. But, builder-employers are required to cooperate with ICE investigations. Other documents of a builder that are relevant to any investigation can be subpoenaed, including the records that a builder possesses concerning its subcontractors.
Q. Can a builder-employer have an attorney present during the I-9 audit?
A. Employers who are the subject of an I-9 audit have the right to be represented by counsel. Given the new federal “compliance attitude”, and its obvious attempt to make builder-employers responsible for subcontractor hiring practices, it is recommended that upon receipt of an I-9 audit notice, counsel be brought in immediately. Any investigative demands, including demands for subcontractor information, should then be referred to the builder-employer’s attorney for appropriate action and response.
Q. Can incomplete or inaccurate Form I-9s be corrected?
A. If at any time errors are discovered on a Form I-9, corrections can be made. Corrections to Section 1 (employee information) should be made by the employee, or made in the employee’s presence. Corrections to Section 1 should then be initialed and dated by the employee. Corrections to Section 2 (employer review and document verification) should be made by the employer or an authorized representative. Every correction should be initialed and dated by the person actually making the change.
Under no circumstances should a Form I-9 ever be backdated or forged. These are criminal violations.
Q. What penalties can be imposed for violations of the Immigration Act?
A. If any deficiency or illegality is found, ICE will issue a Notice of Intent to Fine (NIF) to the employer. Form I-9 paperwork violations are subject to fines of between $100 and $1100 per infraction. More serious violations, e.g., hiring undocumented immigrants, are subject to steeper fines. Arrest and imprisonment are possible for those who are found to have engaged in a regular pattern or practice of willful violations.
Can an NIF be contested?
A. Yes. An employer has thirty (30) days to contest the Notice of Intent to Fine (NIF) by requesting a hearing before an administrative law judge.
Q. Can anything be done to lessen the penalties for unintentional paperwork violations?
A. Yes. Mitigating factors are considered, including the size of the employer, the employer’s good faith, a good compliance history, the seriousness of the violation at hand, and whether the employee listed on an incomplete or inaccurate I-9 is actually authorized to work. The presence of mitigating factors can result in a reduction of penalties.
Q. What proactive measures should be taken to avoid an unintentional violation?
A. It is highly recommended that builder-employers conduct regular internal audits of their company’s employment records to re-verify the legitimacy and appropriateness of the documents on file, to confirm that all Form I-9s are accurate and complete, and to assure that any temporary work authorizations have not expired.
Q. Where can blank Form I-9s be obtained?
A. At the United States Customs and Immigration Services (USCIS) website: www.uscis.gov/files/form/i-9.pdf
Q. Where can instructions for completing Form I-9s be obtained?
A. Detailed instructions can be found in the USCIS Handbook for Employers – Instructions for Completing Form I-9 online at http://www.uscis.gov/i-9 .
For more information, contact David Crump, NAHB Director of Legal Research at 800-3685242 x 8491, or by e-mail at email@example.com .