Every employer needs to be informed about I-9 (Employment Authorization) compliance. Common errors such as technical violations or improper storage of forms can lead to fines ranging from $110 to $1,100 per violation. In 2010, the U.S. Immigration and Customs Enforcement’s (ICE) Office of Homeland Security Investigations (HSI) reached a $1,047,110 fine settlement agreement with Abercrombie & Fitch on paperwork violations alone. ICE has reportedly stated that it plans to increase workforce investigations by 400%. In fact, ICE opened more worksite investigations seven months into fiscal year (FY) 2018 than the agency completed in all of FY 2017. Enforcement investigations in FY 2018 have doubled last year’s total, and arrests related to worksite enforcement have nearly quadrupled.
Since October 2017, HSI has opened 3,510 worksite investigations, initiated 2,282 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. That’s up from 1,716 investigations, 1,360 I-9 audits, 139 criminal arrests, and 172 administrative arrests the previous fiscal year.
In addition, ICE recently changed the way it calculates civil penalties to increase the fines imposed for I-9 violations. The agency has begun adding the number of paperwork violations to the number of hiring or continuing-to-employ violations as the numerator, which in some cases dramatically increases the level of the fine.
In FY 2017, employers were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines.
Form I-9 investigations were once thought to be limited to verifying the employment authorization of workers. Today, we are seeing investigations result in the opening of Pandora’s box where other government agencies cooperatively work with ICE to investigate tax evasion, money laundering, or other criminal activity.
One common mistake employers may not think about is how the use of temporary agencies or staffing agencies may impact I-9 compliance. Today, the government is criminally prosecuting employers who have established a pattern of using such agencies for long term workers to avoid assuming responsibility for verifying employment authorization. In addition, the government is now investigating these same agencies to ensure that they too are complying with the law.
Here are some tips to avoid common I-9 errors:
- Make sure you are using the current version of the form. You can find the current version at https://www.uscis.gov/i-9. NOTE: The Spanish version of the form is allowed only in Puerto Rico.
- The employee should complete Section 1 of the I-9 and sign and date no later than the first day of employment. The employee should provide all information requested in Section 1. If a preparer or translator assists in completing Section 1, the translator should complete, sign, and date the appropriate section.
- The employer should give the new hire the List of Acceptable Documents and allow them to choose which documents to provide.
- The employer should examine the employee’s identity and employment authorization documents and complete Section 2 within three days of hire. A common omission is failing to include the employee's name at the top of page 2. Also, please be sure your payroll records accurately record the hire date consistent with the I-9 form.
- Update both I-9 forms and payroll/benefits records when a name change occurs or new information is provided (i.e. alien number, social security number, etc.). Terminating an employee for providing false information at the time of hire or coming forth with new documentation at a later time is prohibited in California.
- Should you choose to keep copies of the documents provided, you must do so for all hires. Make sure you are only copying the documents necessary to verify the employee’s identity and employment authorization and that the copies are clear and legible.
- Develop an internal I-9 policy and conduct self-audits regularly. Adapt your I-9 policy based on process weaknesses. Train Human Resource supervisors and personnel regularly on new USCIS and internal procedures.
- Correct errors or omissions as soon as they are discovered. You should draw a line through the incorrect information (best to use a different colored pen), enter the correct information, and write in your initials and date next to the correction. If necessary, attach a written explanation for the correction on a separate piece of paper.
- I-9 Forms should be stored separately from all other personnel files. I-9 forms must be retained even after an employee terminates employment for either three years after the date of hire, or one year after the date the person leaves employment, whichever is longer.
- Under no circumstances should employers attempt to evade compliance by running workers through a temp agency or staffing company or take any action that demonstrates a deliberate disregard of the law.
- Be sure to work closely with company leadership to ensure that there are no other financial, tax, or criminal risks or concerns that the company may be exposing itself to should it be subject to an audit.
One of the best resources for I-9 compliance is USCIS’s I-9 Central website: https://www.uscis.gov/i-9-central. You can find information about acceptable employment authorization documents, I-9 procedures, and the M-274 Handbook for Employers. The website offers written material, videos, webinars, and employee rights quiz.
U.S. Immigration Law Group, LLP can not only assist companies subject to an audit or investigation, but our trained legal team can identify omissions, inconsistencies, and errors that may subject your business to fines or penalties prior to a government audit.
Should your company receive an inspection notice from the Department of Homeland Security, the Office of Special Counsel or the Department of Labor, please call our office immediately at (714) 786-1166 for guidance and assistance.