Employers have been required to verify the identity and employment eligibility of all new hires since 1986, and to document that information by using Form I-9. U.S. Immigration and Customs Enforcement’s (ICE) conducts regular inspections of employers’ Form I-9 records to ensure compliance with the law, and to confirm that employees are authorized to work in the U.S.
ICE investigations in 2018 have doubled as well as arrests related to worksite enforcement. This is consistent with the Trump administration’s focus on immigration enforcement including criminal cases against employers and deporting employees who are in the country illegally.
The Importance of I-9
Under the law, employers are required to verify the identity and employment eligibility of all individuals they hire. Failure to comply with immigration laws including incorrect Forms I-9 and knowingly employing of unauthorized workers can result in criminal and civil penalties.
Recent workplace audits clearly indicate that the I-9 inspection is now a top priority in U.S. immigration enforcement policy. More than 5,200 businesses around the country have been served with I-9 inspection notices since January in a nationwide operation conducted by ICE Homeland Security Investigations (HSI).
Given this dramatic increase, employers need to ensure that their Form I-9 compliance practices meet federal requirements and closely follow the necessary steps in managing I-9 forms to avoid possible mistakes:
- Newly hired as well as re-hired employees need to complete and sign Section 1 of Form I-9 no later than the first day of employment. This is why employers should consider providing the form and instructions for completion prior to the employee’s start date. Thus, employees can bring the completed form and associated verification documents with them on their first day of employment.
- Employees have to present an original document or documents that show their identity and authorization to work in the U.S. within three business days of the date employment begins. New employees can present either one document showing both identity and employment authorization, or one document showing identity and another proving work authorization. It is of utmost importance for employers to closely examine the documents and determine if they appear to be genuine before accepting and documenting the information, signing the form, and returning the documents to the employee. In addition to this, employers can make copies of the identification documentation provided at the time of hire. Maintaining copies of supporting documents can show good faith during an audit and reduce fines, but also serve as a defense against discrimination claims. However, employers need to ensure that privacy and identity of their employees is protected at all times.
- Employers need to retain all I-9 forms for three years from the date an employee was hired, or one year after the employee was terminated, whichever is later. It is highly recommended that employers retain these documents as well as the company’s official process for completing I-9s in a separate file.
Culture of Compliance
Acting Executive Associate Director for Homeland Security Investigations (HSI), Derek N. Benner, stated in a press release that employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records. All industries, regardless of size, location and type are expected to comply with the law.
According to Brenner, ICE has developed a plan to conduct as many as 15,000 I-9 audits a year if it receives funding and support from other areas of the current administration. One of the goals of this proposal is to create a reasonable expectation among employers that they will be audited and ultimately encourage a culture of compliance among them.
As many immigration officials point out, hiring undocumented workers creates unfair advantages for companies, encourages people to come to the U.S. illegally, fosters document and identity fraud, and exposes workers to potentially dangerous conditions without proper equipment. To prepare for the heightened I-9 audits and prevent potential fines, employers need to understand ICE’s comprehensive worksite enforcement strategy that incorporates:
- Increased Form I-9 audits, civil fines and debarment from federal contracts,
- Possible arrest of employers in extreme cases and the administrative arrest of unauthorized workers, and
- Promotion of a voluntary compliance program known as IMAGE. As part of the program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system.
Better Safe than Sorry
From the look of things, ICE will continue with increased I-9 inspections of employers to verify that their employees are authorized to work in the country and determine whether any violations have occurred. Companies need to be prepared to respond to the increased focus on worksite audits, investigations and the enforcement measures that may follow. Failure to comply with the law can result in criminal and civil penalties. Even simple mistakes can cost companies between $216 and $2,126 per each employee’s Form I-9 while monetary penalties for knowingly hiring and continuing to employ violations range from $375 to $16,000 per violation.A key tool in ensuring I-9 compliance is undertaking internal audits to review I-9 documents and correct any errors in advance. This type of precaution can not only reveal problems in time to be corrected, but can also demonstrate the employer’s good faith efforts to comply with I-9 requirements. However, staying on top of Form I-9s and conducting internal audits may seem like a complex process and a logistical challenge. This is why, in the middle of I-9 audit surge and hefty fines, many employers opt for automated systems. Electronic I-9 systems make I-9 forms easier to store and inspect, ensure greater consistency in form completion, reduce possibility of human errors, and provide benefits of integrating the software with E-Verify, a nationwide service that enables employers to check identity information provided by new hires against federal databases. But before embracing paperless I-9 management, employers need to ensure that I-9 software is evaluated for its ability to comply with ICE regulations. Otherwise, they can find themselves on the wrong side of an ICE audit.Find out how you can outsource I-9 verification, prevent mistakes and heavy fines, and maintain compliance by transitioning to electronic I-9 administration.