A step-by-step process to ensuring your I-9 procedure will avoid hefty fines.
By Aleksandra Michailov
The Immigration and Customs Enforcement’s (ICE) pursuit of employers who violate federal immigration compliance laws is expected to be moving full speed ahead in 2013, and in some instances accelerating in comparison to prior years. As a result of both substantially increased funding for enforcement actions and an outcome of the public debate about illegal immigration, ICE will continue to audit thousands of employers during the next year. An internal review of I-9 compliance policies will soon become a best practice among employers.
The numbers don’t lie. According to government reports, ICE quadrupled the number of worksite inspections performed for compliance violations within the past two years. In early June 2012, ICE issued 500 notices of inspection for I‑9s and issued fines against employers who were found to be non-compliant. And the fines are adding up. According to public ICE statistics, in 2011 ICE issued more than 385 final orders against employers for worksite violations totaling more than $10 million in fines, compared to only $675,000 in 2008.
I-9 employment verification is not a choice—it’s the law. Since the implementation of the Immigration Reform and Control Act of 1986, all U.S. employers must complete and retain a Form I-9 for all citizens and noncitizens hired for employment in the United States.
Although the paperwork appears deceptively simple, employers continue to struggle with properly completing the form on time, which often results in both substantive, procedural, or technical violations. Fines for each incorrect or missing Form I-9 range from $110 to $1,100 per instance. Unauthorized worker violations start at $375 and can climb to $16,000 per undocumented—or improperly documented—employee.
A sizeable case just wrapped last month. A McDonald’s restaurant franchisee located in Wichita, Kansas, was charged with one felony count of knowingly accepting a fraudulent identification document offered as proof that an employee was eligible to work. As part of the plea agreement, the employer agreed to pay a $300,000 fine and an additional $100,000 forfeiture judgment.
I-9 Best Practices
So what can employers do to mitigate employment risks and ensure they are hiring authorized employees?
To lessen the risk of immigration compliance liability, employers should conduct periodic internal audits and adopt best practices and standard operating procedures to show good faith compliance practices. Here are some best practices:
1. Have an internal HR executive oversee the process. A dedicated resource will be able to ensure a consistent approach to I-9 paperwork and continuous attention to strict deadlines and regulation updates. The person should be responsible for coordinating the entire work authorization process, including setting-up and enforcing internal policies and communications.
2. Store employment verification documents in a secure location. Employment verification laws mandate strict and lengthy employee document retention. Depending on your company’s size, volume, and preference, you may keep paper files or move exclusively to online storage systems. Remember to keep only the minimum number of documents required, and store the I-9 forms and document photocopies separate from your employee files.
3. Establish a process. According to the regulations, employers must complete Form I-9 within three business days of hire. They must also re-verify work authorization documents the day they expire. There is no grace period.
4. Keep a reliable reminder system before employment eligibility expires. Failure to track expirations and conduct re-verifications could be used as evidence that a business knowingly violated compliance laws. ICE considers it an egregious violation when employers fail to re-verify the employment eligibility of an employee whose employment authorization has expired. This is especially relevant if you hire foreign national workers, whose work authorization documentation is typically issued for a period specified in immigration laws and needs to be extended and then re-verified for I-9 purposes. For this reason, employers have a process in place to obtain documentation of the continued employment eligibility of the employee before the work authorization expires.
5. Conduct regular self-audits and annual external audits. Internal audits and annual external audits help ensure verification policies are compliant with the most current regulations and forms, increase process efficiency, and build good faith. By performing regular audits, businesses can save the steep fines, brand damage and penalties—including criminal prosecution—that accompany noncompliance.
When Worksite Enforcement Audits Occur
Even the most compliant corporations may find ICE knocking on their doors. It does not necessary mean that you have a problem. ICE has the authority to initiate an investigation on its own without a written complaint, a warrant, or subpoena. What triggers an audit?
Though ICE does not explicitly state its preliminary investigative methods, sources cite employer history, business industry, concentration of illegal aliens in the area, other government agency referrals, and worksite observations as factors.
Here are some best practices to follow during an employer workforce enforcement audit:
1. Take note of directions. Follow the instructions on the ICE notice and the instructions for the Form I‐9 when seeking to correct Form I‐9 defects, including the Lists of Acceptable Documents and the anti‐discrimination notice.
2. Get it in writing. Communicate in writing with employees from whom you seek information, and describe the specific basis for the discrepancy and/or what information you need from them. Do not terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I‐9 documents.
3. Treat everyone equally. The employer should treat all workers in the same manner during the audit, without regard to national origin or citizenship status. This means that you provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE. Do not selectively verify the employment eligibility of certain employees based on their national origin or citizenship status based on the receipt of an ICE notice of inspection.
The rules regarding I-9 compliance are not always clear. This uncertainty creates confusion among employers relating to document completion, retention, and re-verification. While substantial compliance is a defense to some paperwork violations, the increased odds of an audit and the possibility of substantial monetary and reputation harm are sufficient enough reasons to establish sound I-9 compliance policy. Incorporating these best practices into your verification process will ensure your business is compliant with the most current regulations and practices. It will increase process efficiency, build good faith and will help prevent—or at least mitigate—any potential penalties.
Aleksandra Michailov is an attorney at Capitol Immigration Law Group PLLC in Washington, DC. This is the first article in a two-part series on Form I-9 completion.