In 2011, the United States Immigration and Customs Enforcement (ICE) ramped up its audits of employers and they ended up having their most productive year for revenue collected from audits conducted and fines issued to employers, for hiring undocumented illegal individuals; who are classified as those who entered the country illegally and without inspection by a US border officer; those who do not have work authorization; or those who arrived legally but have fallen out of their legal status. To avoid prosecution, if the individual is eligible, employers are able to pursue work visas for their employees through the employment-based immigrant visa program; however, the individual must qualify for this process and those illegally here will not qualify unless they have been granted some type of work authorization through programs such as Prosecutorial Discretion, OSup or DACA.
In fiscal year 2011, Texas led the nation in the number of fines issued to companies that had hired illegal individuals, with 63 businesses fined as the result of audits of their I-9 forms. This is nearly double the number of fines issued in the state with the next-highest number; New Jersey, which had 37 fines issued. Nationwide, the median fine amounted to $11,000, and that number continues to rise.
In these audits, ICE delves into a company’s I-9 paperwork. These are I-9 forms are required by each employee employed in the United States and these forms are filled out by the employee and employer and filed with the company when it hires a new worker. I-9s declare a worker’s eligibility to work in the United States and the employee must provide copies that prove their eligibility. Employers verify the documents and forms provided by the employee by inspecting the documents for their authenticity and confirming the documents used are evidence of the worker’s eligibility to work.
In an I-9 audit, ICE will compare the names on I-9s to the provided Social Security numbers and they will make sure that they match. If they so not, companies can be fined for hiring these individuals ineligible to work in the United States. ICE can even press criminal charges against managers for hiring these illegal individuals if they knowingly did so.
In 2007, the agency conducted 250 I-9 audits. In just five years, that number shot up to over 3,000. Between 2009 and 2012, fines collected from these audits rose from $1 million to $13 million. Additionally, 238 managers were arrested in 2012 on charges of hiring illegal immigrants. The agency uses tips from the public, employees, forms submitted, and other companies to decide which companies it audits.
ICE officials say that these audits are good tools to force companies into compliance with federal immigration laws as well as to deter companies from hiring illegal workers in the first place. However, critics of the agency’s increase in audits argue that the audits have caused mass layoffs of workers, disrupted the business of companies across the nation and have forced illegal workers to move even further underground.
Fortunately, it with new policies is possible for about 140,000 immigrants a year to be issued an employment-based immigrant visa. And, work authorization of work visas are issued according to an applicant’s being in the United States legally or under 245(i) and being eligible for a family based petition; or belonging to one of five work related preference categories; or being granted OSup, DACA or PD.
If they are eligible for work authorization through a work related visa, the individual’s employer must start the process, by hiring a competent employment attorney who will then file for labor certification approval with the Department of Labor. Then, after the approval of the Labor Cert, the employer can file an Immigrant Petition for Alien Worker with U.S. Citizenship and Immigration Services or file for H-1B employment. Employees or future employees cannot apply for the visa themselves unless they are eligible under the first preference work category group.
Immigrants in the first category work related group are called first preference and those individuals include those with an extraordinary ability in the arts, sciences, education, business or athletics; professors and researchers and multinational managers or business executives or those who have an immediate family member who can apply for their visa. Those in the second preference category include those with advanced degrees or those with exceptional abilities in the sciences, arts and business. Third, fourth and fifth-preference categories include skilled and unskilled workers, professionals, ministers and international broadcasters, among others.
Audits of companies suspected of hiring illegal workers will likely continue until immigration reform allows more companies to apply for work-based visas for their employees for those already illegally in the United States. If you have questions about how to obtain work authorization, about I-9 audits; or about work or investor visas, contact an experienced immigration attorney.