Immigration Compliance Must-Knows for C-store Retailers

ALEXANDRIA, Va. — On the heels of U.S. Immigration and Customs Enforcement (ICE) raids on multiple 7-Eleven locations, it's more important than ever for convenience store retailers to school themselves in immigration compliance.

Under the Trump administration, there is an increased focus on enforcement and compliance. For instance, ICE has been told to increase its worksite enforcement by 400 percent, according to Guidepost Solutions CEO Julie Myers Wood and Managing Director John Connolly, who co-presented a recent webinar titled “What Every Convenience Store Should Know About Immigration Compliance.” The webinar was hosted by NACS, the Association for Convenience & Fuel Retailing, and sought to answer retailer questions about the impact on the industry, how to prepare for ICE arriving at locations, the current administration's focus and efforts pertaining to immigration, and what the future of immigration under Trump’s administration holds.

As ICE expands its reach, it will zero-in on repeat offenders of employing undocumented workers, as well as companies that are deliberately hiring those who are undocumented.

ICE’s worksite enforcement strategy consists of a three-pronged approach:

• Inspections, fines and debarments; 

• Employer and employee arrests; and

• Outreach and education through IMAGE, a formal membership certification program. 

Retailers who should be most concerned about an ICE raid are those with a previous criminal record or on the receiving end of administrative action by ICE or the Department of Labor (DOL).

Wood and Connolly warned that every worksite enforcement investigation is “unique” and involves many contributing factors, such as:

• Knowingly hiring unauthorized workers.

• Evidence of trafficking, harboring, fraud, money laundering and mistreatment of employees.

• Threats of deportation, coercion, substandard wages and unsafe working conditions.

So, what's a retailer to do? They outlined the following measures:

I-9 Forms

A basic and imperative measure that retailers must take is ensuring that every individual hired has completed an I-9 form, including U.S. citizens, permanent residents, and immigrants authorized to work in the U.S. The only exempt groups are employees who were hired prior to Nov. 7, 1986, independent contractors, and those employed by a contractor providing contract services.

Section One of the I-9 must be completed by the employee on or before the first day of work commences. Section Two of the I-9 must be completed and signed by the employer within three business days.

Wood and Connolly noted that the I-9 form was revised last summer. With the revision, employees must now certify whether or not a preparer and/or translator(s) was used. For more information on the I-9 form, employers can visit USCIS.gov.

Due to the possibility of fraudulent I-9 forms, employees need to be on the lookout for them, lest they be held liable. One way an employer can know if a document is real or not is the “reasonable test,” which merely means that the document in question appears to be genuine and relates to the prospective employee.

An employer should also look for any indication of fraud. Does the document reflect the proper agency that issued it? Does the information on the back of the card match the information on the front?

Other I-9 warnings: Employers cannot accept photocopies of I-9 documents and must personally examine the original document themselves. Employers cannot request I-9 documents during an interview or at anytime before hiring, nor can they require more documents than required by law or refuse to honor acceptable documents. Employers must keep employees’ I-9 forms for three years after the date of hire or one year after the date of termination — whichever is later.

Penalties

In terms of civil or administrative penalties, employees who are found guilty of knowingly hiring and continuing to employ undocumented workers can face anywhere from a $548 to $4,384 fine per violation for a first offense. Failing to produce an I-9 form or other violations could incur fines from $220 to $2,191 per instance.

These sorts of violations are divided into “Technical Violations” and “Substantive Violations.” The former include incorrectly completed I-9s and a failure to enter date of hire, and may be granted a 10-day grace period to correct. The latter include missing I-9s, an employee’s failure to sign, and an employer’s failure to review a document.

In the case of criminal activity, such as engaging in a pattern or practice of hiring, recruiting or referring undocumented workers, the penalties are more severe. An employer could face a $3,000 fine per undocumented worker employed and up to six months in prison.

Mitigating Factors

If employers have the resources to do more than the minimum of staying on top of their employees’ I-9 forms, there are a number of other options to stay in the good graces of ICE and the DOL.

Wood and Connolly suggest employers do the following:

• Participate in the Department of Homeland Security’s E-Verify program.

• Establish a “level of cooperation” with ICE and Homeland Security Investigation agents.

• Seek assistance through ICE and participate in IMAGE.

• Have a robust internal immigration compliance program.

The E-Verify program is a government system that’s meant to aid in confirming employment authorization. However, it doesn’t eliminate the possibility of identity fraud, nor does it guarantee I-9s are accurate.

If ICE Comes 

If ICE raids your stores, the key is to be prepared and have a strategy in place. An employee onsite should be designated to handle the visit, should one occur. Other staff members should be informed that they’re to divert any investigators to this person.

It should be determined early on whether ICE is acting on a subpoena, arrest warrant, search warrant, or nothing. The designated staff member should also obtain the name of the ICE agent leading the operation. A call should be placed to the business's counsel or compliance advisor.

Looking ahead, Wood and Connolly believe it’s more than likely that there will be additional changes to immigration and labor laws and how they will be enforced. While Trump has detailed a plan that he would like to see put in place, it’s uncertain how exactly that will be translated into policy. Regardless, employers must be vigilant to ensure they’re keeping up-to-date with the latest changes.