Fencepost - July/August 2017 - 41

Oftentimes, investigations begin with ICE
conducting a Form I-9 audit but balloon
when ICE discovers other violations. For
example, employers that have been found
to have knowingly hired, recruited, or
even referred an unauthorized alien for
employment can be subject to fines starting at $539 per violation for a first offense
and increasing to $21,563 per violation
for a third or subsequent offense. U.S.
Citizenship and Immigration Services'
matrix of civil penalties lays out potential
punishments in further detail and can
be found here: https://www.uscis.gov/
i-9-central/penalties.
"Knowing" is a key term in the INA,
and it has been defined broadly. The
term includes not only actual knowledge,
but also knowledge that can be inferred
through "notice of certain facts and circumstances which would lead a person,
through the exercise of reasonable care, to
know about a certain condition." This constructive knowledge can include, but is not
limited to, situations where an employer:
1. fails to complete or improperly completes the Form I-9;
2. has information available that would
indicate the alien is not authorized to
work; or
3. acts "with reckless or wanton disregard
for the legal consequences of permitting another individual to introduce an
unauthorized alien into its work force
or to act on its behalf."
In addition to civil liability, ICE can pursue criminal liability against an employer.
Oftentimes, Form I-9 audits are an effective
means to furthering criminal investigations. The following are legal theories ICE
may pursue to bring criminal charges:
1. Harboring, encouraging, or inducing an
alien to remain in the United States in
violation of the law. If performed for a
commercial advantage, an individual
could face up to 10 years per count in
prison. In addition, company assets
involved in the illegal activity could be
subject to civil forfeiture.
2. Knowingly hiring 10 unauthorized individuals within a 12-month period with
actual knowledge that the individuals
were not authorized to work and that
they were brought to the United States
in violation of the law. This carries a
penalty of up to five years in prison.

The definition of an independent contractor
is more restrictive in the immigration context
than some employers understand it to be.
3. Impeding, impairing, or obstructing lawful government functions of the Internal
Revenue Service (IRS) or Social Security
Administration. This is punishable by
up to five years in prison.
4. Material misrepresentation on a Form
I-9. Such a violation is punishable by up
to five years in prison.
5. Pattern and practice. The penalties include imprisonment for up to
six months and fines up to $3,000 for
each unauthorized alien.

IF I HIRE UNION LABOR, DOES THAT
SHIELD ME FROM LIABILITY?
No. Form I-9 rules allow an employer
that hires labor pursuant to a multiemployer bargaining unit to rely on and use
a Form I-9 properly completed within the
past three years by another employer within
the same association. When doing so, the
employer is protected from civil liability
associated with the Form I-9. But, when
the Form I-9 is not properly completed, the
subsequent hiring employer assumes civil
liability associated with the errors in those
forms. In addition, the employer assumes
criminal liability associated with knowingly hiring someone who is not authorized
to work in the United States. There is a
reasonable presumption that an employer
knows that the person was unauthorized
when it hires someone who is not authorized to work. As a result, employers hiring
union workers may want to always review
previously completed I-9s to ensure compliance with immigration laws.
In determining whether to rely on previously completed I-9s, a question often
arises as to whether an employer should
just treat a union employee as a "new hire"
and complete a new I-9. When evaluating
this question, the employer can look to the
collective bargaining agreement (CBA) and
determine if it prohibits such an action. If
it does, the employer will need to engage
union representation and negotiate the
completion of new forms I-9. In addition,
www.americanfenceassociation.com | 41 | July/August 2017

employers may want to be aware that treating an employee as a "new hire" will trigger E-Verify obligations if the employer is
enrolled in E-Verify. It is vital to similarly
negotiate E-Verify queries with union representation when E-Verify obligations will
be triggered.
Thus, employers are presented a choice
when involved in union labor hiring practices. On one hand, employers can use the
earlier completed forms I-9 but will need
to verify that the forms were properly completed to avoid liability. Doing so would
decrease the administrative burden associated with having to run E-Verify queries
on new employees. On the other hand,
employers can treat union hires as "new
hires" and complete new forms I-9 and then
run E-Verify queries if required. Doing so
may increase the burdens associated with
a CBA but will better protect the employer
from liability associated with improperly
completed forms I-9.

WHAT ABOUT LIABILITY FOR
INDEPENDENT CONTRACTORS?
In general, employers are not required
to complete and retain forms I-9 for their
independent contractors. But the definition of an independent contractor is more
restrictive in the immigration context than
some employers understand it to be. In fact,
ICE takes a narrower reading of "independent contractors" than the IRS. As a result,
individuals who are considered independent contractors for tax purposes may be
considered to be employees for immigration purposes, which would require the
completion of a Form I-9.
The term "independent contractor"
includes individuals or entities that carry
on independent business, contract to do
a piece of work according to their own
means and methods, and are subject to
control only relating to results of a project.
Factors to be considered in whether the
employer exercises enough control over
the contractor to tip the scales toward an


https://www.uscis.gov/ http://www.americanfenceassociation.com

Table of Contents for the Digital Edition of Fencepost - July/August 2017

Editor’s Note
Executive Director’s Message
President’s Message
Board of Directors | Board of Governors
Setting Yourself Apart From the Competition
VMA
Cutting Fuel Costs With Fleet Tracking
Blue Ribbon Companies
The Right Gate for the Job
CLFMI
New Technologies Provide Global Reach for Access Systems
New Members
All About I-9s
Calendar
Good Fences and Good Neighbors
Minding Your Business
Fencesense
Index to Advertisers
Fencepost - July/August 2017 - Intro
Fencepost - July/August 2017 - cover1
Fencepost - July/August 2017 - cover2
Fencepost - July/August 2017 - 3
Fencepost - July/August 2017 - 4
Fencepost - July/August 2017 - 5
Fencepost - July/August 2017 - 6
Fencepost - July/August 2017 - 7
Fencepost - July/August 2017 - 8
Fencepost - July/August 2017 - 9
Fencepost - July/August 2017 - 10
Fencepost - July/August 2017 - 11
Fencepost - July/August 2017 - 12
Fencepost - July/August 2017 - Editor’s Note
Fencepost - July/August 2017 - 14
Fencepost - July/August 2017 - Executive Director’s Message
Fencepost - July/August 2017 - 16
Fencepost - July/August 2017 - President’s Message
Fencepost - July/August 2017 - 18
Fencepost - July/August 2017 - Board of Directors | Board of Governors
Fencepost - July/August 2017 - Setting Yourself Apart From the Competition
Fencepost - July/August 2017 - 21
Fencepost - July/August 2017 - 22
Fencepost - July/August 2017 - 23
Fencepost - July/August 2017 - 24
Fencepost - July/August 2017 - VMA
Fencepost - July/August 2017 - Cutting Fuel Costs With Fleet Tracking
Fencepost - July/August 2017 - 27
Fencepost - July/August 2017 - 28
Fencepost - July/August 2017 - Blue Ribbon Companies
Fencepost - July/August 2017 - The Right Gate for the Job
Fencepost - July/August 2017 - 31
Fencepost - July/August 2017 - 32
Fencepost - July/August 2017 - CLFMI
Fencepost - July/August 2017 - 34
Fencepost - July/August 2017 - New Technologies Provide Global Reach for Access Systems
Fencepost - July/August 2017 - 36
Fencepost - July/August 2017 - New Members
Fencepost - July/August 2017 - 38
Fencepost - July/August 2017 - All About I-9s
Fencepost - July/August 2017 - 40
Fencepost - July/August 2017 - 41
Fencepost - July/August 2017 - 42
Fencepost - July/August 2017 - Calendar
Fencepost - July/August 2017 - Good Fences and Good Neighbors
Fencepost - July/August 2017 - 45
Fencepost - July/August 2017 - 46
Fencepost - July/August 2017 - 47
Fencepost - July/August 2017 - 48
Fencepost - July/August 2017 - Minding Your Business
Fencepost - July/August 2017 - 50
Fencepost - July/August 2017 - Fencesense
Fencepost - July/August 2017 - 52
Fencepost - July/August 2017 - 53
Fencepost - July/August 2017 - 54
Fencepost - July/August 2017 - 55
Fencepost - July/August 2017 - 56
Fencepost - July/August 2017 - 57
Fencepost - July/August 2017 - Index to Advertisers
Fencepost - July/August 2017 - cover3
Fencepost - July/August 2017 - cover4
Fencepost - July/August 2017 - outsert1
Fencepost - July/August 2017 - outsert2
Fencepost - July/August 2017 - outsert3
Fencepost - July/August 2017 - outsert4
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