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Audits of businesses for hiring undocumented workers on the rise | St. Louis Employment Immigration Attorney Jim Hacking

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As a result of one of the Obama Administration's new policies in aiming to approach immigration reform, more companies are being audited by Immigration and Customs Enforcement (ICE) for failing to verify the legal work status of employees. Audits of I-9 forms have increased from 250 in 2007 to 3000 in 2012. The number of company managers arrested has also increased dramatically over the past few years.

President Obama will be working with Congress on a new immigration plan. In the meantime, the president believes that companies who knowingly hire undocumented workers should be fined." Our goal is compliance and deterrence," said Brad Bench, special agent in charge at ICE's Seattle office. "The majority of the companies we do audits on end up with no fines at all, but again it's part of the deterrence method. If companies know we're out there, looking across the board, they're more likely to bring themselves into compliance." While the Administration uses these record high numbers in fines and audits as a sign if their effort in managing immigration, many business owners are reluctant to jump on board with the idea as these audits are costly and time consuming for them.

First off, there is no method when choosing which companies get audited. ICE does not consider region, business or number of employees. This is a negative for businesses such as Belco Forest Products as their production is decreased and they lose several days of production as ICE audits them over other businesses that serve as their competition. Belco's chief financial officer believes the way audits are conducted is unfair. "Why do some companies get audited and some don't? Either everyone gets audited or nobody does. Level the playing field."

Next comes the problem of accountability and how much are employers really responsible. According to government regulations employers are required to make each employee fill out an I-9 form that declares the employees are authorized to work in the U.S. whether or not these documents match social security cards or other information puts employers in an unreasonable situation to be required to verify correct identities.  Many small businesses do not have the time nor resources to verify each employee that applies. They are technically working within restrictions of the law by rightfully completing the I-9 form and hoping for the honesty of the employees they hire. The audits "don't make any sense before a legalization program," said Daniel Costa, an immigration policy analyst at the Economic Policy Institute, a Washington, D.C., think tank. "You're leaving the whole thing up to an employer's eyesight and subjective judgment, that's the failure of the law. There's no verification at all. Then you have the government making a subjective judgment about subjective judgment."

With ICE fining large and small companies alike, the largest fine was $394,944 and the lowest was $90 with a median fine of $11,000. Franchise owners have issued statements to require hiring according to the law, but it is difficult to verify workers when an immigration system is in place that allows undocumented workers to have forged documents and no real system that is easily accessible to employers to be able to check. Business owners suggest the responsibility of proving legality of workers be left in the government’s hands. If an E-verify program was implemented in addition to the I-9 forms, audits would result in lesser fines and less employers hiring unauthorized workers. While Congress debates over the proper way to address a new immigration system, businesses are left to fend on their own and hope their workers have filled out the I-9 forms truthfully to prevent an expensive and time consuming audit from ICE.

If you have questions regarding workplace immigration audits, contact us at 314-961-8200 or visit our contact page.

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