Burden of Proof with Relevancy to I-9 Violations

In law, there is something called the burden of proof, or the onus probandi, if one speaks Latin.  Simply put, it is an obligation on the person making the claim to provide sufficient evidence to overcome or shift the default position to the position of the claim.   The most familiar example of the burden of proof comes from the criminal trial.  There, the prosecutor is claiming that the defendant is guilty and must present enough evidence to overcome the default presumption of innocence, or in other words, provide enough proof beyond reasonable doubt.  The opposite of the burden of proof is the benefit of assumption – it is assumed that the claim needs no supporting evidence.   Using the criminal trial example again, the defendant is free to sit back and do nothing because they have the default assumption of innocence.

In the realm of immigration and employment law, each completed Employment and Eligibility Verification Form I-9 (Form I-9) becomes a claim by the employer that they have performed their legal duty and ascertained that all hires are legal workers.  Therefore, when U.S. Immigration and Customs Enforcement (ICE) sends out Notices of Inspections (NOIs), it is demanding that those employers assemble enough evidence to prove that they are not in violation of immigration hiring policies.  With an estimated 20,000 employees in 400 offices in the U.S. and around the world, ICE’s audits are part of a $138 million worksite enforcement effort that seeks to level the playing field for companies by punishing infractions with hefty fines and possible prison sentences for key managers.   The fines are listed on ICE’s website:

• $375 to $16,000 per violation for knowingly hire and continuing to employee violations
• $110 to $1,100 per violation for substantive violations, which includes failing to produce a Form I-9

The fines add up – Infosys recently agreed to pay $34 million in a civil settlement for visa fraud and systemic I-9 violations.

The problem with complying with the Immigration and Nationality Act (INA) is that employers are essentially asked to make a subjective judgment on whether they believe that the documents presented and the information listed are legitimate.  When the audit occurs, the government makes yet another subjective judgment on whether it believes that the employers knowingly erred on form or if the error occurred from negligence.  That’s a lot of subjective judgment that the employer has to overcome or face ponying up fees.

There’s good news.   If a party fulfills the burden of proof effectively, they now have the benefit of assumption, and pass the burden of proof off to the other party.  For example, in the criminal trial, the prosecution presents their case first and when they rest, it is with the belief that they have proved their case beyond a reasonable doubt.  They have now shifted the burden of proof to the defendant to introduce that doubt.  For I-9s, the government has provided a tool to help employers overcome their burden of proof from the beginning, before the NOI and the audit: E-Verify is an internet-based program to help employers verify work authorizations.  Currently, a total of twenty-one states require the use of E-Verify for at least some public and/or private employers, with eight states requiring E-Verify for all employers.

Source: National Immigration Law Center

It is important to note, however, that E-Verify only provides a presumption of good faith for employers who use it – E-Verify does not eliminate the timely and costly aspect of catching and correcting mistakes that can occur during the I-9 process.  Here’s a list composed by the United States Citizenship and Immigration Services (USCIS) of common mistakes: there are eight for employees and an alarming eleven for employers.  These common mistakes are chances for fines that are present for each I-9 filled and the complications that carry over to each piece of data entered into E-Verify, which often result in delays and uncertainty.   Employers need to eliminate these common mistakes with a system that minimizes repeat data entry, streamlines the I-9 and E-Verify process, and stores all information in a convenient location that is readily accessible in the event of an ICE audit.

Remember that the goal for the employer is to shift the heavy burden of proof to the government.  By utilizing E-Verify with a streamlined data entry and storage system, the employer can, like the defendant in a criminal trial, force the government to work hard while they sit back and rest easy knowing that they have already completed their legal duty long before receiving the NOI.