Immigration Compliance: A Roadmap for the Savvy Retailer

With summer upon us and the marketplace flooded with jobseekers, many retail employers find themselves in the enviable position of having a large pool of potential workers from which to hire. But before you utter the words, “You’re hired,” you need to be sure you are prepared to navigate the potential pitfalls of immigration compliance. Although employers have long been required to check the employment eligibility of all new employees, in the last several years the government has begun vigorously enforcing this obligation and imposing substantial penalties for noncompliance, with the majority of the focus centered on the I-9 form, designed to verify an employee’s identity and eligibility to work in the United States.

The retail sector’s proliferation of temporary, seasonal and entry level, low skilled jobs means high employee turnover, and makes it an easy target for the government’s increase in enforcement actions; investigating and penalizing employers for hiring and employing unauthorized workers and for failure to comply with I-9 employment eligibility verification requirements. Even if a business does not employ a single foreign worker, it does not relieve the company from meeting I-9 requirements. Even the simplest of paperwork violations can result in fines ranging from $110 to $1,100 for each improperly completed I-9. The same type of fines can be levied even if there are no I-9s at all on file. And if it is alleged that the employer knew or should have known that it was employing unauthorized workers, the penalties escalate substantially.

In the post 9/11 era, we have seen a dramatic increase in the amount of money, number of officers, and time put into investigations of an increased number of worksites. And in 2009, U.S. Immigration and Customs Enforcement (ICE), the government agency charged with worksite enforcement, shifted the focus of its financial resources and manpower from raids to worksite audits, and investigations of employers’ I-9 practices. In July 2009, ICE issued more than 650 Notices of Inspection (NOIs) to employers across the nation, and, in the course of that inaugural investigation, of the 85,000 I-9′s that were audited, 14,000 suspect documents were revealed, resulting in $2.3 million in fines assessed against businesses. In November 2009, an additional 1,000 employers were served with NOIs, and the trend has continued into 2010.

To steer clear of government sanctions, employers must do more than simply complete the I-9 form accurately. They must also comply with numerous technical recordkeeping and documentary requirements. Fortunately, employers can be proactive in setting up and maintaining a corporate I-9 compliance program for very little cost. Here are the top ten steps to get your immigration house in order:

  1. Obtain clear legal guidance on the I-9 process and assign the corporate immigration agenda to an executive or senior manager. Train and regularly retrain corporate management on immigration compliance issues.
  2. Prepare Form I-9, Employment Eligibility Verification, for every employee hired after Nov. 6, 1986, including company owners and upper management. The employee should complete, date, and sign Section 1 of the Form I-9 on the date of hire, and the employer’s representative should examine original documents (one from List A, or one from List B and one from List C) within three business days of the date of hire and fill in Section 2.
  3. There is no requirement to copy documents presented by the employee during the I-9 process, but if you choose to copy documents for one, you must do so for all employees.
  4. Do not name specific documents you wish to review to establish employment eligibility (“I need to see your driver’s license and Social Security card”) or request additional documentation (“You’ve shown me your Green Card, but do you also have a driver’s license?”). Rather, show your new hires the document lists on the back of Form I-9, and let them choose what they want to provide.
  5. You are not a document fraud specialist, but you must examine documents to confirm that they reasonably appear to be genuine and relate to the person presenting them.
  6. If you are re-hiring an employee within three years of their initial hire, you can use their original Form I-9 for verification, but be sure to complete Section 3 of the I-9 with the date of rehire, and updating with the new work authorizing document, as necessary.
  7. Understand the line between verification and discrimination, and encourage consistent and lawful I-9 practices throughout the company. Remember that there are civil and criminal penalties for failure to comply with employment verification requirements and for discrimination.
  8. Maintain completed and signed I-9 forms in a separate file throughout the entire time the individual is employed with the company, and for one year from the date of termination or for three years from the date of hire, whichever comes later.
  9. Self-audit I-9 files at least annually, and immediately after major hiring.
  10. Be sure store managers know who to contact within the company if a Notice of Inspection is received. Companies will generally have only three days to produce the requested documents, so time is of the essence.

By establishing thorough in-house immigration compliance policies and practices, performing spot checks of existing I-9 Employment Eligibility Verification files; training personnel responsible for I-9 procedures, and developing a basic plan for handling government inspections, savvy retailers can position themselves to take advantage of better economic times to come, free of the concerns of being caught in an enforcement quagmire.

Julie Wade is an immigration attorney in the Dallas office of Gardere Wynne Sewell LLP. Her practice focuses on business and family immigration, including I-9 compliance, employment visas for professional workers, and pe