Worksite Enforcement of I-9 Laws

With immigration continuing to be a focus in the U.S., worksite enforcement of I-9 laws is something business owners should pay attention to. Immigration and Customs Enforcement (ICE) agents have ramped up scrutiny of Employment Eligibility Verification form (I-9) procedures, and the results have been eye-opening. In a single year, ICE has more than quadrupled the number of investigations:

Homeland Security Investigations Executive Associate Director Derek Benner characterizes the purposes behind the surge, saying: “These laws help protect jobs for U.S. citizens and others who are lawfully employed, reduce the incentive of illegal migration, eliminate unfair competitive advantages for companies that hire an illegal workforce, and ultimately help strengthen public safety and national security.”

ICE fully intends to continue its expansion of enforcement of employment and immigration laws with the goal of creating a “culture of compliance.” The agency’s FY 2019 includes an additional $570.9 million earmarked for 2,000 more law enforcement officers and 1,312 support staff to process the increased workload.

While the investigative focus centers on industries that (1) concern critical infrastructure or (2) have historically been known to exploit undocumented workers, ICE agents may initiate an I-9 audit for any reason, or no reason at all. Attention often falls on businesses through either unrelated investigations by sister agencies or even by anonymous tip through the form on ICE’s website.

How Can You Prepare?

Even the most solid corporate I-9 compliance procedures can be toppled by a single mistaken employee administering the forms. Executives and owners can be liable for the actions of that employee, and the company is subject to heavy financial penalty for his/her errors. So, what can you do?

• Tighten I-9 procedures. Forms must always be filled out timely and without error. The best time to catch a mistake is within the initial three business day window for each form, but mistakes must be handled properly, adhering to US Citizenship and Immigration Services (USCIS) guidelines. Create an airtight process for tracking document expiration dates where applicable and stay ahead of them.

• Maintain I-9s separately from personnel files to avoid extra sorting upon audit. Keep the I-9s of former employees who are still within the three-year retention period separate from those of active employees and purge old records regularly.

• Conduct an internal audit or engage a professional to do it for you. Keep in mind that self-audits must be conducted in a non-discriminatory manner. Before it begins, update your employee roster. Do not just fix forms with mistakes or add missing documentation — corrections must always be made in accordance with USCIS guidelines.

• Train administering personnel thoroughly and refresh often because even good faith mistakes can generate penalties in an audit. Impress on these employees the legal obligations the company has not only to perfect the data, but also to protect it. Explain that each signature they put to an I-9 subjects them to perjury charges as though they were testifying in a court of law. Inexperienced workers often have no context for tasks they perform and therefore do not understand the gravity of what they are charged with doing. A little history and background can go a long way to promoting a conscientious HR staff and a culture of I-9 compliance.

• Have a plan ahead of time in case a Notice of Inspection arrives. Assign a point of contact who is knowledgeable about the legalities and will not panic. Respond calmly and professionally to auditor requests. Agents are empowered with discretion to increase or decrease fines by as much as 25%.

• Be conscious of employees’ rights. Do not allow HR personnel to administer the forms with any appearance of discrimination such as in a misguided zeal to “protect” the company by demanding additional documentation. Auditors are searching for violations against employees, too, and even foreign nationals who are authorized to work in the U.S. receive equal protection of the employment laws.

• I-9 law is a complicated mixture of immigration and employment laws with sometimes competing interests intertwined. Employers are nonetheless responsible for complying with each strand. Know these laws and comply with them. Sophisticated I-9 software exists to help businesses navigate the issues and to automatically incorporate changing laws and regulations in real-time and in the background. This can be a cost-effective method of ensuring compliance.

• Consider voluntary participation in the federal government’s E-Verify program. This program electronically matches identity documents against federal databases. Scrutiny is elevated, and a presumption of compliance comes with the program, though it also has some drawbacks.

Even the most well-intentioned company can suffer negative results in an audit, and the consequences can reach into millions of dollars. Expanded enforcement of I-9 laws is a fact of life, and as the increased caseload is processed over the next few years, we will see more and more surprising penalties applied to both punish and deter. Taking the initiative to protect your business now could prevent costly mistakes in the future.