Philip SiegelLittle progress has been made on an issue clearly important to the roofing industry — immigration. Roofing workers are scarce, and without a reliable source of workers, many contractors are faced with the risks of hiring undocumented workers.

The Immigration Reform and Control Act requires employers to verify employees’ identity and employment eligibility; the Employment Eligibility Verification Form I-9 is the primary means of documenting this verification. Employers who fail to properly complete I-9 forms are subject to civil fines ranging from $110 to $1,100 per paperwork error violation. The monetary penalties for knowingly hiring and continuing to employ unauthorized workers ranges from $375 to $16,000 per violation.

Immigrations and Customs Enforcement (ICE) is an investigative branch of the Dept. of Homeland Security (DHS) charged with enforcing U.S. immigration and customs laws. ICE was created in 2003, and it took over the responsibility of enforcing the immigration laws from the Immigration Naturalization Service, commonly known as INS. 

ICE verifies employer compliance with I-9 requirements by conducting inspection audits, which are initiated by serving a Notice of Inspection to an employer compelling him or her to produce I-9 documents. I-9 audits are a critical component in ICE’s work-site enforcement strategy. 

ICE has revealed it is focusing its audit and inspection efforts on critical infrastructure industries and industries that rely on work forces that traditionally depend on vulnerable workers, such as the construction industry. Given the increased enforcement efforts of ICE, particularly within the construction industry, it is important roofing contractors know and understand their rights and make preparations for how to respond if ICE issues a notice of inspection and conducts an audit of a company’s I-9 forms. 

ICE has the authority, without the necessity of a subpoena, to inspect any employer’s I-9 forms to verify compliance and to check accuracy. Unless ICE has a warrant or subpoena, it is required by law to provide employers with three day’s notice to produce I-9 forms for inspection and copying. If ICE has a warrant or subpoena, no advance notice is required and an employer must allow ICE to conduct its search in accordance with the scope set forth in the warrant.  If the employer refuses to comply, ICE can seek judicial enforcement of the subpoena or warrant. Should an ICE investigator appear at a worksite without a warrant or subpoena, roofing contractors should know and understand that an investigator cannot demand an immediate production of the I-9 forms. 

One important step is to designate a management representative who is authorized to meet and talk to ICE or DHS personnel. Regardless of whether an ICE investigator appears with a subpoena, the company representative authorized to meet and talk to DHS or ICE personnel should be contacted. Roofing contractors also should immediately contact immigration or employment counsel for assistance with the audit.

Although an investigator may appear at a company’s offices to give notice of the intent to audit, it has been the practice of ICE to cooperate with the employer in scheduling an I-9 form audit beyond three days after notice of the intent to audit. In the time period between receipt of the notice and the actual audit, roofing contractors need to immediately begin assembling the documentation. 

In the event of an audit, roofing contractors are advised to keep their I-9 forms separate from other employment-related documents that are kept within an employee’s personnel file. This is because in the event ICE discovers a possible violation of the law within the Department of Labor’s (DOL) jurisdiction during the course of an audit, ICE must contact the appropriate DOL field office.

During an audit, the company representatives should always be polite and assume an attitude of cooperation with ICE and DHS. The designated company representative also should  keep records of all information sought by ICE or DHS and the questions the ICE investigator asks. A record also should be kept of the responses given to any questions posed by the ICE investigator. If the ICE or DHS official intends to remove documents from the premises, the company representative should make copies of all documents given to ICE and an inventory should be created that identifies the number of original I-9 forms that were relinquished to ICE.

When an I-9 form audit is complete, ICE will notify the audited party, in writing, of the inspection results. If the audited employer is found to be in compliance, the notice received from ICE is referred to as a Notice of Inspection Results, or a compliance letter. If, after its review of the I-9 forms, ICE determines an employee is unauthorized to work, it advises the employer of the possible criminal and civil penalties for continuing to employ that individual. This notice is referred to as a Notice of Suspect Documents. The notice provides the employer and employee an opportunity to present additional documentation if they believe the finding is in error.

If ICE is unable to determine a particular employee’s work eligibility, ICE provides a formal Notice of Discrepancies. A Notice of Discrepancies advises the employer to provide the employee with a copy of the notice and to give the employee an opportunity to present ICE with additional documentation to establish employment eligibility.

When technical or procedural violations are found, ICE issues a Notice of Technical or Procedural Failures. This notice gives the employer 10 business days to make corrections. If corrections are not made in a timely manner, ICE determines a substantive violation has occurred. An employer may receive a monetary fine for all substantive and uncorrected technical violations. 

If a fine will be issued, ICE publishes a Notice of Intent to Fine to the employer. Penalties for substantive violations, which include failing to produce an I-9 form where retention of the form was required, range from $110 to $1,100 per violation. As noted above, penalties for knowingly hiring and continuing to employ unauthorized workers ranges from $375 to $16,000 per violation.

If a Notice of Intent to Fine is issued, the employer has 30 days to contest the intended fine by requesting a hearing before an administrative law judge. If the employer requests a hearing, DHS files a formal complaint with the office of the chief administrative hearing officer, and the case is assigned to an administrative law judge.  The office of the chief administrative hearing officer then sends all parties a copy of a notice of hearing and the complaint.

If the matter is not resolved in settlement or not disposed of by the judge in response to a dispositive motion, the matter proceeds to a hearing. Following the hearing, a final agency order is issued by the administrative law judge. If the employer disagrees with the decision of the administrative law judge, the employer has 45 days to file an appeal with the appropriate federal circuit court of appeals.

Roofing contractors are advised to conduct their own internal audit of I-9 forms and correct any mistakes (or complete I-9 forms if none exist). Mistakes should be initialed and dated and never backdated. Correcting mistakes in this manner can avoid a large fine, and conducting the self-audit will help assess potential liability in the event of an audit.

Siegel will speak during IRE Session WE02 (My Employees are Legal: An Overview of the Form I-9 Process from Hiring through ICE Audit) on Wednesday, Feb. 13, 7:45 a.m. to 9 a.m. in room 204.