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Employers at Increased Risk for ICE I-9 Audits in 2018

Beginning in 2018, employers are four or five times more likely to be targeted for a Form I-9 audit conducted by Immigration and Customs Enforcement (ICE). During an audit, a team of ICE agents may visit an employer’s workplace to obtain copies of the employer’s I-9 Forms, with little or no notice, and will review the forms to ensure that each employee has presented a valid form of identification and is eligible to work in the United States. ICE can impose monetary penalties and criminal sanctions against an employer for hiring an ineligible employee, or for making mistakes on the I-9 Form. The intended result is to reduce illegal immigration by limiting undocumented individuals’ access to jobs in the U.S.

These audits can have serious repercussions for employers. Fines range from $220 to $1,800 or more per violation, even for the first violation. (The most recent penalties are available here). This means that monetary penalties can quickly add up to tens of thousands of dollars, if not more, especially for employers who have made errors on the I-9 Form for each of their employees. ICE can also multiply the amount of the fine, if an employer knowingly hired or continued to employ an ineligible worker.

For example:

Moreover, an I-9 audit can affect the bottom line, even if an employer is well-prepared. An audit may disrupt normal business operations, and cause panic and confusion for staff and management alike, if each does not know what to expect.

It is imperative that an employer knows the Form I-9 requirements, completes the forms accurately and with proper supporting documentation for each employee, and prepares its staff for what to expect during a potential I-9 audit. An employer should have robust procedures in place to ensure consistent I-9 compliance and should consider having an attorney or other trained professional review its I-9 Forms to identify potential violations that could result in penalties from ICE in the future.

What must an Employer do to comply with Form I-9 laws and regulations?
Under federal law, 1 all U.S. employers are prohibited from:

  • Hiring and employing an individual for employment in the U.S. knowing that the individual is not authorized for employment;

  • Continuing to employ an individual knowing that he or she is unauthorized for employment; or

  • Hiring any individual, including a U.S. citizen, for employment in the U.S. without verifying his or her identity and employment authorization.

The federal government issues the Form I-9 as a tool for employers to ensure they comply with the above. All U.S. employers, from a large multinational corporation to a small, one-shop LLC, must complete a Form I-9 for each of their employees working in the U.S., including U.S. citizens. The form has two basic parts: Section I – for the employee to complete; and Section II – for the employer to fill out. Although the form appears fairly straightforward, there are a number of pitfalls that employers and employees commonly fall into.

What Mistakes Do Employers Commonly Make on the Form I-9?
Even seemingly small mistakes – such as using last year’s form – can result in penalties. The following are common errors that all employers should be aware of and seek to avoid. First, there are tight deadlines that are commonly missed. The employee must fill out Section I no later than his or her first date of employment. The employer must complete Section II no later than the third day of employment.

In addition, employers frequently commit violations based on the type of documentation they require employees to provide. The form specifically requires an employee to provide and the employer to verify either: (1) a single document that proves both the employee’s identity and work-eligibility (Column A); or (2) one document that proves the employee’s identity (Column B) and a separate document that proves the employee’s work-eligibility (Column C).

However, employers often violate this rule by:

  • Assuming a particular employee is a U.S. Citizen, and wrongly concluding that the employee is not required to provide any documentation. But all new hires must provide valid documents. Lack of supporting documentation is a violation.

  • Requesting that all new hires provide a specific document. But the form requires employers to accept either one document from Column A or one from each of Columns B and C. Mandating that employees provide a specific document is a violation.

  • Assuming that “more documentation is better,” and asking certain employees presumed to be foreign to supply additional documentation. Again, the form lists exactly what documentation is requires, and requesting additional documentation is a violation.

  • Failing to complete a new Form I-9 for a re-hired employee. An employer must submit a Form I-9 and supporting documentation for each new hire, even if the employee has previously worked for the employer in the past.

  • Forgetting to re-verify an employee’s documentation after the document(s) on file have expired (Caution: never re-verify an expired document from Column B).

Employers often make I-9 mistakes across their entire workforce, as well. These include, wrongly requiring independent contractors to submit a Form I-9 and using an outdated Form I-9 for new hires. Even if an employer has correctly and accurately completed I-9s for each of its employees, there are document retention requirements that must be followed. An employer must retain all I-9 Forms for three (3) years from the date an employee was hired, or one (1) year after the employee was terminated, whichever is later.

Again, uncorrected violations of any of the above can result in monetary fines per violation against the employer. Thus, employers should train their Human Resources and administrative staff to ensure consistent compliance with the I-9 Employment Eligibility Verification process.

What Can Employers Do to Minimize the Risk of an I-9 Audit?

  • Train HR staff and administrative personnel on the I-9 rules and requirements.

  • Have an attorney conduct an internal audit of the Employers’ I-9 Forms.

  • Know the process of the formal I-9 audit process, starting with the Notice of Inspection and potentially ending with the Notice of Intent to Fine.

  • Ensure you are using the most recent Form I-9.

  • Designate employer points-of-contact with ICE ahead of time, to ensure open communication with ICE if an audit occurs.

At DeWitt, we have the knowledge and experience to help you review and when possible, guide you to ensure your existing I-9 records are correct. We can also train your human resources and administrative personnel to ensure consistent compliance with the I-9 Employment Eligibility Verification process. If you believe that your company’s I-9 practices have not been consistently applied, or you would like to ensure that your company’s practices are in compliance with the I-9 verification process, contact Attorney Kai Hovden at ckh@dewittross.com and Attorney Raluca Vais-Ottosen at rvo@dewittross.com.

1 Immigration reform and Control Act of 1986 (“IRCA”).

About the Author

Kai Hovden has experience in a diverse array of legal matters including labor and employment litigation, contract disputes, administrative proceedings, immigration representation, and trademark issues among others. He is a member of DeWitt’s Immigration, Labor & Employment Relations, and Litigation Practice Groups.

Contact Kai by email or phone at 608.252.5391.

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