U.S. Immigration and Customs Enforcement (ICE) has focused on creating a ‘culture of compliance’ by heavily relying on I-9 inspections to find and fine Employers who do not follow immigration laws regarding employment eligibility verification. Immigration law (8 U.S.C. § 1324a (b)) requires employers to verify the employment eligibility of each employee by completing and maintaining Form I-9.
ICE’s Homeland Security Investigations (HSI) unit can audit any company on a random basis or by following a lead from the public, other businesses, disgruntled employees at the workplace, or through tips from other government agencies. The number of businesses subjected to I-9 audits has soared over the last few years from hundreds to thousands per year. HSI continues to issue Notices of Intent to Fine (NOFs) at an unprecedented rate for Form I-9 related violations.
It is imperative to know your rights if you are confronted with an I-9 audit. If ICE appears to review your I-9 forms and conduct an audit, insist on a written Notice of Inspection and your right to have three business days before you turn over your original I-9 forms.
Be prepared by conducting a self-audit of your I-9s now and create and maintain a culture of compliance within your business! Hire knowledgeable Counsel to conduct an internal I-9 audit and self-examination of your systems, operating procedures, and present practices for handling I-9s.
I-9 Audit Basics—What to Expect:
- The Employer will learn of the inspection through a Notice of Inspection (NOI) and Subpoena requiring them to produce I-9s and supporting business documentation (such as payroll records, list of employees, Articles of Incorporation, and business licenses).
- Employers are typically given three days (72 hours) to produce the stated documents in the audit notice.
- If technical or procedural violations are found, the Employer will be given 10 days to correct them.
- Substantive violations, such as failing to produce I-9s, as well as technical violations that are not corrected within the 10-day limit, will be subject to a fine ranging from $216 to $2,156 per violation.
- Penalties for violations tied to knowingly hiring and continuing to employ or unlawful discrimination of employment authorized individuals range from $539 to $21,563 per violation.
- ICE considers five factors in determining penalties: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.
Best Practice Tips:
- Establish a uniform written I-9 compliance policy and train your staff on it. Utilize the recent version of the I-9 Employer Handbook (M-274, Rev 7/17).
- Avoid discrimination claims by educating your staff on the appropriate way to verify documents and treat all job applicants the same regardless of their citizenship or immigration status, or their national origin.
- Put in place a “tickler” system to notify HR staff of upcoming re-verifications for individuals that possess temporary employment authorization.
- Establish a best practice method for proper cataloging and retention of I-9s—separate former and active employee’s I-9s.
- Keep your I-9 forms organized and separate from general personnel files. Establish a consistent policy regarding obtaining and retaining copies of documents verified.
- Purge old I-9s that are past the retention period on an annual basis (3 years from date of hire or 1 year after termination, whichever is longer).
- Conduct routine formalized self-audits and document each internal audit. Hiring legal counsel to aid in this will help your organization with a structured approach to auditing and compliance.
It is likely that the movement toward increased scrutiny of I-9s will continue to increase in the future. There are a multitude of factors that may motivate HSI to target a business for an I-9 audit. Business should not assume that only those with a large foreign national workforce should be concerned about maintaining a culture of compliance within their workplace.
Resources for I-9 Questions:
- Employer Handbook: http://www.uscis.gov/sites/default/files/files/form/m-274.pdf
- Website: http://www.uscis.gov/i-9-central
- Email: I-9Central@dhs.gov (general I-9 questions) or firstname.lastname@example.org (unfair immigration-related employment practices and discrimination)
This message has been released by the Immigration Group at Ryan, Swanson & Cleveland, PLLC to advise of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.
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