[Blogger’s Note: Today we have a dandy guest post from the ever insightful, prolific and droll, Nici Kersey. Don’t be put off by her introductory paragraphs. There’s an immigration gem awaiting — one that employers, and the lawyers who counsel them, will not want to miss.]
Gambling on Immigration at a Dangerous Intersection(Merry Christmas, Ninja Squirrel!)
I run several days a week on the Air Force base where I’ve lived for the past 18 months. I prefer to run on River Road, which has a river on one side and a golf course on the other and which leads from my house to a prison. (Apparently, prisons and military bases are frequently co-located, perhaps in part because of the need for cheap labor to take care of golf courses, which are also frequently located on Air Force bases.) Here are some things I have learned on these runs:
- People will try to hit you with golf balls. They will find this funny. They are probably drunk and are unlikely to hit you, but it will be unnerving, and you will learn to avoid the golf course area during the drunkest hours.
- Signs warning you about alligators will, at first, cause you to run your fastest miles in years. Over time, you will begin to slow, hoping to actually see some evidence that alligators once inhabited the earth. You will see a snake one day, and that is as exciting as your wildlife encounters will be.
- Until the day you see a meerkat, which you will chase and photograph. But then you will figure out that it was just an Eastern Fox squirrel, which is basically a larger-than-normal squirrel wearing a ninja mask.
- The inmates will, at first, have an effect similar to the alligator signs, causing you to run faster and carry mace. Over time, you will realize that they have little interest in you, and they are prohibited from even speaking to you. You will eventually just wave hello to the prisoners and start to concoct wild plans for how you can help them escape from jail.
- Two things that you will never get used to: running behind an active firing range. (This will always make you run very, very fast.) Ditto: running under a C-130 that is landing. You will manage to be within 20 yards of the end of the runway at least twice, and both times, you will nearly soil yourself.
- Every now and then, your normal running trail will be closed due to “explosive dog training.” Causing you to wonder how, exactly, one trains a dog to explode and, if you succeed, why you even bothered with the training.
Okay, okay. I’m supposed to write about immigration, right? Here goes: when I run 4 or
more miles, I come to an intersection that used to cause anxiety: turn left, you enter the federal prison; turn right, and signs warn you of alligators; turn around, and you have to run back through the golf course where the drunk people tried to hit you with balls.
Employers who are trying to decide whether to conduct a voluntary I-9 audit today face a similar intersection. Turn left, they risk entering the federal prison in a way more “official” way; turn right, and they may lose valuable employees who are eligible for work authorization which simply hasn’t been granted yet. (In this metaphor, the employees are getting gobbled up by the alligators. Get it?)
Previously, employers deciding whether to undergo an audit needed to consider several factors. Among them: the cost of the audit, the risk that would be eliminated by the audit, whether the employer could take the time to correct violations discovered, and whether the business could survive the loss of any employees determined to lack employment authorization. The new executive order adds a twist. A number of employees who do not hold work authorization today may obtain employment authorization within the next 12-24 months. This raises the question of whether now is the right time to conduct an audit.
If an employer discovers today that Bob presented fake documents when he was hired, and the employer confronts Bob, and Bob admits that his documents were fake and that he is not authorized to work, the employer must terminate Bob’s employment. If Bob says he is not work-authorized today, but he is eligible for DAPA under the new executive order, the employer still must terminate Bob’s employment, even though – if the employer had waited a year to conduct the audit and confront Bob – Bob’s fate could have been much different.
So the question becomes whether employers would be wise – or kind – to wait until the new batch of DACA/DAPA beneficiaries have obtained employment authorization prior to conducting a voluntary audit.
If the employer waits a year or so, it can clean up its I-9s without the loss of as many valuable employees. But if the employer waits a year or so and is, in the interim, inspected by ICE, the employer may face hefty fines and – in the most egregious situations – a prison sentence.
And it has become abundantly clear that ICE is not “chilling out” until the new batch of DACA and DAPA employment authorization cards are issued. (ICE isn’t even chilling for the holidays, having issued Notices of Inspection this week.) Who is most likely to be inspected? Employers in “critical infrastructure” are high on ICE’s priority list. It also seems that employers who were previously inspected and issued a Warning Notice are high on the list, as are employers referred to ICE after an investigation by another agency (DOL, OSC, USCIS). And those employers who are suspected of hiring unauthorized workers – knowingly or unknowingly – are at high risk of an inspection. Employers at higher risk of inspections may not be wise to gamble by waiting to conduct an audit.
Employers may also consider geography in assessing their vulnerability. Those in California are less likely to be fined for I-9 violations than those in Illinois (see page 7).
So I understand the inclination to wait so that you can avoid the “alligators” that will gobble up your valuable employees. But to avoid the alligators, you have to run through the golf course and risk being hit. If you’re lucky, you’ll see a ninja squirrel or a tiny green snake. If you’re not lucky, you may have to run through the prison yard, and not in a fun way.
Wait a second … this was supposed to be a holiday-themed blog post? Yikes. Okay. So, one day I was running on River Road and listening to Vampire Weekend (for the purposes of this post, we are going to say that the song was “Holiday”) when an unidentifiable liquid dropped from a tree directly into my eye. I became convinced that a squirrel peed in my eye. The best thing to do when you think a squirrel has peed in your eye is ask your Facebook friends for advice. They will call you Chicken Little, and your eye will be fine. And if you still don’t feel like this post was holiday-y enough, here’s a gift: an annotated Form I-9 to help keep you out of trouble. Merry Christmas!
 “Critical infrastructure” is defined by ICE to include Agriculture/Food, Banking/Finance, Chemical, Commercial Facilities, Communications, Critical Manufacturing, Dams, Defense Industrial Base, Emergency Services, Energy, Government Facilities, Healthcare/Public Health, Information Technology, National Monuments/Icons, Nuclear Reactors, Materials/Waste, Postal/Shipping, Transportation Systems, and Water.
 But some employers in California are considering conducting self audits on an expedited basis so that they can terminate employees who lied at the time of hire about their employment authorization. (Such terminations based on dishonesty may not be allowed if the employees have gained employment authorization under a law that took effect early this year.)