The bed-bug infestation in so many of New York City's popular shops and attractions is not the only issue on the proprietor's mind these days. Lurking within their consciousness, these owners need to worry if their businesses will be closed down, even for a temporary extermination, as a result of their failing to properly complete an eligibility Form I-9 for all new hires.
The men and women who are looking to draw the bugs out of their hiding places are not merely the pest control of today. They are the Special Agents and Forensic Auditors of the Immigration and Customs Enforcement (ICE) agency who can cause a hindrance when they invade an otherwise successful business in order to audit the company's I-9s.
The fashion industry, in particular, has seen its share of immigration related problems of late.
In July 2009, American Apparel announced that the results of a 2008 Form I-9 inspection revealed that nearly 1,800 employees did not appear to be authorized to work in the U.S and would have to be let go.
And just last week, Abercrombie & Fitch effectively fetched itself a $1.05 million fine with ICE for violating federal immigration laws by failing to adequately verify that the employees in its Michigan stores were legally authorized to work in the United States.
The Immigration Reform and Control Act (IRCA) of 1986, stipulates that every individual hired after November 6, 1986 by a U.S. employer must complete a Form I-9 within three business days of his/her start date. The form is used to verify the new employee's identity and employment eligibility. Even citizens of the U.S. must complete the form. Human resource personnel are required to inspect, in its original form, a document or set of documents to corroborate both identity and eligibility. This information is then entered onto the I-9. The I-9 must be retained for the duration of the employment, as well as for a certain period of time following the termination of the employee. This one-page form has a 65-page explanatory handbook.
If an ICE audit is performed and the I-9s are not found to be compliant, significant civil/criminal penalties may be assessed. On the civil side of the ledger, these can range anywhere from $110 for each and every paperwork violation found on the I-9 -- up to $16,000 for the unlawful employment of aliens, per person. Charges of criminality may even result in jail time as well as forfeiture of property.
The number of proprietors who are unaware of their responsibility with respect to verifying their employees' employment eligibility is staggering. In fact, many think an I-9 must be related to a W-4 and defer this legal responsibility to their accountants. Indeed, this is not the case.
As Congress remains deafeningly silent on immigration reform and continues to pass the responsibility to employers to police the status of their employees, we can expect even more audits.
As such, all U.S. employers would be wise to conduct a self-audit to determine compliance with this requirement. In the event the audit reveals that I-9s do not exist or that they are incomplete, consultation with an immigration attorney who specializes in Form I-9 compliance is suggested.
It is my hope that this recent infestation will be replaced with more appropriate (and fashionable) legislation which will not only bolster our economy but will continue the extraordinary tradition and legacy of liberty and true security.