I-9 Compliance and Employer Self Audits
The Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States.
Form I-9 compliance derives from the Immigration Reform and Control Act of 1986 (IRCA). Since its implementation the enforcement strategy has changed. Initially, while former INS had the ability to audit and fine, it was not a common practice. For example, the focus during the Bush Administration had ICE carrying out highly publicized raids, but not focusing on conducting routine I-9 audits. Up until recently, employers have failed to appreciate the importance of compliance, however, for the past 6 years, employers have been operating in a climate of increased and stricter enforcement. In April of 2010 ICE implemented its new comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce by focusing its resources on the auditing and investigation of employers suspected of knowingly hiring illegal workers. ICE has emphasized its commitment to hold employers accountable for their hiring practices by pursuing both civil fines and criminal prosecutions of employers who are not in compliance. ICE has put all employers on notice that they need to make certain that their I-9 documentation and practices are in compliance. Additionally, the OSC has been pursuing companies that discriminate when completing the form I-9.
In 2008, ICE issued 503 Notice of Inspections. That number has increased over 600% in 2014 where ICE served 3.127 Notices of Inspection and 642 Final Orders totaling $16,275,821 in administrative fines. In FY2013, ICE made 452 criminal arrests tied to worksite enforcement investigations. Of the individuals criminally arrested, 179 were owners, managers, supervisors or human resources employees. They face charges such as harboring or knowingly hiring illegal aliens. In addition, ICE also started implementing fines directly against employers. ??Over the past years, the size and industry of companies being fined varies. An employer can be fined even if the employee is work authorized for a failure to maintain Form I-9 records and update and re-verify employment authorization status. The range for fines for violations is from $95-$1110 per I-9 (see: http://www.uscis.gov/i-9-central/penalties). Therefore, it is imperative for all employers to update their I-9 policies to limit their exposure for violations. This includes making certain the person responsible for I-9 completion has been properly trained. Also, should he or she should regularly audit to ensure completing correctly. This can include self-audit or use of a third party auditor. Below are some tips on how to conduct a self-audit:
- All Form I-9’s in an internal audit need to be reviewed on a neutral and non-discriminatory criteria. Audits should not be conducted on the basis of employee’s citizenship status or national origin.
- Employees correct errors in employee section (Section 1) by: drawing a line through incorrect information; entering the correct or omitted information; and initial and date the correction or omitted information. Employer’s correct errors in employer section (Section 2 or 3) by: drawing a line through incorrect information; entering the correct or omitted information; and initial and date the correction or omitted information. Changes should not be concealed by erasing or white out.
- Documentation presented for Section 2 of the Form I-9 is sufficient as long as the documentation was acceptable under the requirements of the Form I-9 in effect at the time the Form I-9 was complete.
- The documentation presented for Section 2 of the Form I-9 is sufficient as long as the documentation was acceptable under the requirements of the Form I-9 in effect at the time the Form I-9 was completed.
- If Form I-9 for a current employee was never completed, missing, or whole sections were left incomplete, the current version of the I-9 should be completed as soon as possible. The form should not be backdated. The employer should attach a signed and dated explanation of the corrective action taken.
- An employer is required to accept original Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting the documentation. If an employer concludes that a document does not appear to be genuine or relate to the individual presenting, the employer should address its concern with the employee and provide the employee with the opportunity to choose a different document to present from the Lists of Acceptable Documents.
- An employer may not request specific documents when correcting a Form I-9 as a result of an internal audit.
- An employer should not require all existing employees to complete a new Form I-9 instead of conducting an internal audit because many existing Form I-9’s appear deficient. It is better to correct those that can be corrected.
- The employer should provide all employees who claim they are work-authorized with a reasonable amount of time to address any deficiencies associated with their Form I-9 and should not summarily discharge employees without providing a process for resolving the discrepancy.
- An employer should not use the Social Security Number Verification Service (SSNVS) during an internal audit.
In addition, ICE and the Office of Special Counsel issued a more detailed joint Q & A for conducting internal audits here: hwww.justice.gov.
Employers that are vigilant about I-9 compliance are in a much better position during such an audit and will be able to avoid civil fines and potential criminal prosecution. In the current climate of multiple investigations and even criminal prosecution of U.S. employers violating laws in the hiring and retention of foreign workers, it is imperative that each employer understand and comply with the requirements of Form I-9 and other applicable immigration requirements.