U.S. Immigration and Customs Enforcement (ICE) continues with conducting audits of employers’ I-9 work authorization verification forms and related enforcement activities. Given that the Trump administration has made immigration enforcement an important priority of the federal government, employers should expect that ICE will continue to focus on I-9 compliance. In this atmosphere, employer preparation is critical for minimizing business disruptions and they need to take necessary steps to avoid mistakes, audit troubles, and potential penalties.
ICE Investigations Continue to Trend Upward
Regardless of whether they employ foreign workers, employers have to ensure that their employment policies and procedures are in order since ICE is becoming more and more aggressive. A significant increase of ICE investigations in fiscal year (FY) 2018 is followed by the same trend in FY 2019 with over 5,000 I-9 audit letters sent to employers. In 2018, ICE opened 6,848 worksite investigations, initiated 5,981 I-9 audits, and made 779 criminal and 1,525 administrative worksite-related arrests. As a result, all of these categories increased by 300 to 750 percent over 2017.
Immigration enforcement has continued to be a priority in 2019 as well. In July alone, 3,000 Form I-9 notices of investigation (NOI) were sent to employers by ICE. Also, large-scale raids have taken place in different parts of the United States. One of the largest workplace raids in a decade was conducted in August when six hundred and eighty workers from seven poultry processing plants across Mississippi were arrested by ICE. Earlier this year, search warrants were executed at a Texas telecommunications equipment repair company and several similar companies resulting in the arrest of over 280 employees.
The aim of ICE investigations is to pursue criminal prosecution against businesses based upon illegal employment. Criminal charges companies can face range from crimes for the unauthorized hiring of undocumented workers, harboring, and tax evasion to wage and hour violations. Mistakes on Form I-9 can lead to large civil penalties, ranging from $220 to $2,292 per violation. Employers with unauthorized employees who are discovered during the course of ICE investigations are given 10 days to terminate the workers’ employment.
As a result of Mississippi and other raids, employers should expect that ICE will continue with increased worksite enforcement efforts. Therefore, they should take proactive and remedial measures in order to avoid the costly and unfavorable consequences of ICE audits that can damage businesses and their employees’ welfare.
The Form I-9
The document at the center of ICE investigations is Form I-9, Employment Eligibility Verification. The Immigration Reform and Control Act of 1986 (IRCA) requires employers to fill out an I-9 form for all employees hired since November 6, 1986, regardless of their immigration status in order to accurately determine the new employees’ immigration status.
The purpose of the I-9 is to verify the identity and employment authorization of workers. In the first section, employees attest that they are citizens, lawful permanent residents, or foreign nationals authorized to work temporarily. In the second section of the Form I-9, employers are required to record that they have examined original documents from a specified list, thus verifying employees’ identity and eligibility to work. Employers have to accept the documents if they appear reasonably genuine and relate to the person presenting the documents.
However, form I-9 is not the easiest form to complete. Determining whether the identification and work authorization documentation employees present are sufficient can be complex and challenging. As a result, form I-9 mistakes are common, leaving employers exposed to various fines.No employer is safe from the scrutiny of federal immigration agencies. Use this comprehensive guide to find out how to stay prepared and ensure Form I-9 and E-Verify compliance.
How to Prepare for ICE Investigations
Every employer can be subject to ICE investigations of their workers’ employment eligibility. The law requires employers to provide ICE with forms I-9 for each active employee within three days of being served the NOI. To avoid this, employers should be proactive and address potential gaps in I-9 compliance by taking the necessary steps, such as:
Internal Assessment and I-9 Audits
Internal assessment of policies and processes is an effective way to show employers if a more thorough review or an audit is necessary. Both internal assessments and internal I-9 audits can discover different I-9 omissions, such as paperwork violations, missing I-9s, expired work authorizations, and fraudulent documents. Either way, timely correction of any issue is critical. This allows employers to take the necessary steps, reduce potential fines and penalties, and establish a good faith defense in the event of ICE investigations.
Reviewing I-9 Policies and Procedures
In the light of frequent ICE investigations, companies should review their pre-hire applications, I-9 retention policies, Social Security number mismatch issues, reverification policies and practices, and other relevant processes to ensure compliance with the law. Employers should also consistently review established policies to ensure the proper application of anti-discrimination provisions.
Proactive Management of I-9 Verification
Manual completion of I-9 forms usually leads to an increased number of errors, improper I-9 filing, and lost documents. That is why many employers turn to electronic I-9 systems. However, not all systems are compliant with I-9 regulations and employers need to choose an automated system that not only replaces error-prone paper processes but also fulfills I-9 compliance safeguards. Also, employers should opt for a software fully integrated with E-Verify, a nationwide service that enables employers to check identity information against federal databases.
Minimizing Potential Consequences of ICE Investigations
Judging from practices of the Trump administration, ICE will continue to conduct civil and criminal prosecution of employers who violate form I-9 requirements. As different enforcement efforts make clear, it is high time for employers to ensure that they are compliant with all immigration and hiring laws. The adoption and implementation of an effective I-9 compliance policy, including regular auditing of completed I-9 forms and comprehensive training of those responsible for the completion of such forms, can help to avoid the harsh consequences of non-compliance.
No employer is immune from ICE investigations and employers need to act accordingly. For example, it is critical that businesses adopt and implement an effective I-9 compliance policy to ensure that they are aligned with workforce employment authorization verification requirements. Prudent preparation also includes periodic internal assessments and audits of I-9 forms as well as choosing an electronic I-9 management system integrated with E-Verify. As a result, employers can ensure greater consistency in completing the necessary documentation, avoid harsh consequences of non-compliance, and stay prepared amid growing audit activity and high-profile fines levied by ICE.Embrace paperless I-9 management to experience the workflow and storage benefits of an electronic system fully compliant with ICE regulations.