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By Bill Riley, senior managing director, Guidepost Solutions
It’s no surprise that US President Donald Trump has approached immigration issues in a stricter manner than his predecessor. There have already been notable worksite enforcement actions by the US Immigration and Customs Enforcement (ICE) agency, with more certain to come.
Most major corporations have undoubtedly taken steps to be compliant with the relevant law. The real problem, however, especially in the face of this new enforcement vigilance, is the steps corporations aren’t taking. The fact is many are out of compliance and don’t even know it.
The reason – or reasons – appear simple, but are actually relatively complex: Everything from fraud to human error in filling out the appropriate forms at the time of initial employment. The complexity is in finding these breaches of the law and putting in processes to make sure they don’t happen again. For large organisations operating at multiple locations – especially franchise model entities – visibility into the depths of employment ranks, let alone compliance control, is particularly challenging.
What can employers do to come into full compliance? It begins with a thorough audit, but also requires an analytical process that “connects the dots” to make sure every act, intended or not, of non-compliance is rectified and no new ones are committed.
Worksite enforcement on the rise
Over the course of the eight-year Obama administration, immigration policy focused on penalising undocumented immigrants who committed crimes and those who recently crossed the border. The first indication that enforcement would be different under Trump came when Philadelphia tree-trimming company Asplundh LLC was assessed a record fine of US$90m for non-compliance last September.
Every corporation is vulnerable, from those with franchise models (which employ 8.7m people) to agriculture, landscaping, food processing, fast-food, construction, hospitality, and janitorial services.
The fix: Minimising deficiencies
ICE has been clear about its enforcement posture. Earlier this year, Tom Homan, ICE acting director, released ICE’s revised worksite enforcement strategy, which focuses on three areas: Compliance, enforcement, and outreach. The optimal first, key step for employers is conducting a compliance audit.
This starts by reviewing and assessing the company’s Form I-9 employment eligibility verification compliance program. Several failures common to many of the large worksite enforcement settlements relate to multiple systematic failures in I-9 compliance.
These systematic failures occur when an individual inputs a name that differs from the documents that they present as part of the I-9 process, whether unintentionally (e.g., a maiden name on their social security card) or as part of a fraud. The key here is what the employer does when this is discovered. The human resources executive needs not only to correct the I-9 form and employee file, but also follow up with the employee to inquire about other potential errors or fraudulent representations. This “connecting the dots” process is key to ensuring compliance.
Another example is when the employer gets a notification from a regulatory agency that there is a discrepancy with the employee’s name or other data provided to the agency. If the employer does nothing about it and the employee is later determined to be unauthorised to work, the lack of action could be considered constructive knowledge of the employee’s status. Finally, employers need to also be diligent regarding employees with expiring work authorization documents. Understanding which documents need to be re-verified for I-9 purposes is itself a daunting task. Even when this aspect is understood, maintaining a robust employee early-notification system and a document-reverification tracking system is critical. Employees with temporary work authorisation documents that expire can be a huge vulnerability if they remain employed without proper authorisation.
Assessing and maintaining I-9 compliance can be a challenging task, especially when it comes to identifying fraudulent documents. ICE’s E-Verify tool can be helpful, but it is vulnerable to the use of imposter documents or identity fraud. Therefore, using additional tools like customized third-party identity verification software solutions can assist with these protective efforts.
Beyond just conducting a deep compliance audit, corporations must also take an active role in training. It is critical that training materials contain the latest guidance, so that employees can be effectively trained, in-person or virtually. HR departments (or anyone having anything to do with the I-9 process) must also keep up to date immigration compliance programs, policies, procedures, and industry best practices.
Protecting your brand
Failure to address worksite enforcement issues can result in serious legal challenges, financial costs, and reputational damages. Companies may be barred from government contracts. Using an external consulting firm, law firm, or internal subject matter experts to conduct an annual review enables the early detection of deficiencies of a business’ I-9 processes. Engaging an independent third-party to conduct these reviews on a regular basis ensures that the internal experts are fully trained and do not inadvertently overlook errors.
Key to the outside perspective this provides is the emphasis on being sure that worksite enforcement starts at the top of the organisation. Corporate management must ensure that the correct tone is being set from leadership and is viewed with the same level of seriousness as any other personnel related regulatory requirements. Only then, will that business truly be able to “connect the dots” and implement a robust compliance program.
Bill Riley is a senior managing director for the Compliance, Federal Practice and Software Solutions practice in the Washington, D.C. office of Guidepost Solutions. Riley spent 20 years as a special agent with the Immigration and Naturalization Service and U.S. Immigration and Customs Enforcement and oversees due diligence, banking compliance, immigration compliance, and trade and border services investigations for Guidepost Solutions. He has worked on numerous international engagements for clients in more than 20 countries.
