Immigration and Customs Enforcement recently announced that they are increasing Form I-9 audits—and the evidence suggests that is already under way, with employers facing a four-fold increase in the likelihood that their I-9 records will be audited. Sure, the audits are looking for individuals who are not legally within the United States, but with employers placed in the position of “gatekeepers” to the U.S. economy, the audits are also looking for strict administrative compliance by employers.
The Immigration Reform and Control Act of 1986 (“ICRA”) requires that employers must ensure proper completion of Form I-9 (“Employee Eligibility Verification”) for every individual hired for work in the United States after November 6, 1986. The verification and documentation requirements are strict, and the employer has a very limited time to obtain the employee portion of the form, inspect the documents proffered by the employee showing proof of legal working status in the US, and complete the employer portion of the form. The employer then retains these completed forms for three (3) years after the date of hire or one (1) year after the date the employee’s employment is terminated, whichever is later. There are significant monetary penalties that apply for knowingly employing a person who is not legally authorized to work in the United States—even criminal penalties in certain situations. Even where all of the employees are found to be legally entitled to work in the United States, an employer may still face penalties for failing to properly complete, update or retain the I-9 forms. These penalties range from $100 to $1100 per violation (as in for every missing or incomplete form) so an audit can become economically painful fairly quickly to a small employer.
Of course, it is better to be in compliance when ICE comes knocking than to be scrambling to try to get into compliance after deficiencies are discovered. Conduct your own “internal audit”. Are you using the most recent version of Form I-9? Check online for the most recent version of the form and “Handbook for Employers, Guidance for Completing Form I-9”. Make sure that the person in your organization who is responsible for completing these forms has adequate training to complete the forms and to recognize potentially fraudulent documents that employees may present. If any of your current employees present documents that will require subsequent reverification, establish a reminder system that will allow the reverification to occur on a timely basis. Set up an I-9 file that separates the forms for current and former employees, and that establishes the destruction date for the forms of former employees. Make sure that you have a completed form for every current employee.
Recently, a small employer confessed to me that they didn’t have I-9s for any of their employees. What to do? For each employee who started work after November 6, 1986, advise the employee that through an oversight, no I-9 was created for them and that you need to complete one. Provide the employee with a copy of the I-9 form, instructions and list of acceptable documents. Give the employee a timeframe to present documentation from the List of Acceptable Documents and to complete their portion of the I-9. Review the documents as you would for any new employee. In the Employer portion of the form, use the employee’s actual hire date where it states “the employee’s first day of employment” (the date the employee was placed onto the payroll), but where the employer signs and dates, THAT date is the date that you actually sign it. Before the signed original form is placed in your I-9 file, attach a signed and dated statement of the Employer stating that you discovered as part of an audit of your HR documentation that Form I-9 had not been completed for this individual and that a form was completed as soon as the omission was discovered. NEVER backdate a form.
If you do get a Notice of Inspection from ICE, respond promptly—you may have as few as three days to produce copies of your I-9s. You may also be required to produce other documentation such as a list of employees, payroll records, or other business records. If you are facing an extensive production, or if you think that there may be some issues with your I-9 forms or documentation, it is a good idea to consult counsel at your earliest opportunity.
The immigration climate in this country is pretty chilly—don’t get in line for administrative or even criminal penalties by failing to complete your duties as an employer.