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In October 2017, Tom Homan, acting director of the Immigration and Customs Enforcement agency (ICE), instructed the agency to increase the number of I-9 audits of U.S. employers nearly fivefold. Homan instructed investigators to concentrate their efforts on employers who don’t comply with I-9 Employment Eligibility Verification requirements – enabling the employment of undocumented workers – and to also arrest any undocumented workers discovered as a result.

Since October, ICE has relied on I-9 inspections to discover and impose penalties on businesses that have not appropriately verified employment eligibility. The number of companies that have had their I-9 processes audited every year has rocketed from a few hundred to thousands. Fines for simple errors, such as incomplete forms, range from $110 to $1,100 per violation. Fines increase to $375 to $14,050 per violation for knowingly or continuing to employ unauthorized workers.

For example, according to a February 2018 ICE press release in FY17, the agency conducted 1,360 I-9 audits, making 139 criminal arrests and 172 administrative arrests. Businesses were ordered to pay nearly $100 million in judicial forfeiture, fines and restitution, including one company whose financial penalties represented the largest payment ever levied in an immigration case. Pennsylvania based Asplundh Tree Experts, Co. pleaded guilty to illegally hiring employees they knew to be ineligible to work in the United States. They were sentenced to pay a judgment in the amount of $80 million, as well as an additional $15 million in civil claims arising from their failure to comply with immigration law.

Given ICE’s increased and intense focus on ensuring employers are held accountable for their I-9 processes, anyone who participates in hiring new employees – especially those involved with employment verification – should be prepared for an audit. Being prepared not only necessitates a thorough comprehension of the complex maze of compliance requirements but also understanding the proper procedures for conducting an internal I-9 audit. Being proactive to help ensure that your company is compliant is the easiest way to prevent potential fines or penalties from ICE.

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Best Practices for I-9 Compliance

  • Select an HR leader to corral your I-9 process, as well as maintain responsibility for creating procedures for proper completion and retention of the form.

  • Make sure that any employees responsible for the I-9 forms are well trained and fully comprehend anti-discrimination practices. They should have substantial knowledge of the federal guidelines around the I-9 process, as well as in-depth familiarity with the M-274 Guidance for Completing Form I-9 handbook.

  • Make sure you have a system in place to track immigration statuses and to ensure that re-verification is completed in a timely fashion. Manually tracking expiration dates and reminding employees to provide updated documents can be cumbersome and labor intensive. And, employees who inadvertently fall through the cracks and become unverified can render your company out of compliance. Tracking systems should not only offer a process for entering I-9 data but also provide confirmation of employment authorization, allow for customized reports for self-auditing, implement safeguards to prevent over-documentation, and flag data entry errors.

  • Employees who telecommute must still complete Section 1 of the Form I-9 and have their identities and/or work authorization documents reviewed in person by HR. Simply scanning or photocopying documents and emailing them is not allowed. It’s important to provide clear instructions to new hires about properly completing the I-9 process.

  • Conduct an annual self-audit to help ensure continued compliance with I-9, and E-Verify rules. You can find guidance online for correcting errors or omissions on various sections of the I-9, as well as how to manage lost, incomplete, or outdated I-9s.

Key Takeaways

It’s never too late to be audit ready. You should periodically conduct self-audits to help minimize potential liability and to put your company in a position to successfully handle an audit.

Heavy fines and penalties that threaten the growth, and sometimes existence, of businesses are commonplace for those not fully committed to checking work eligibility requirements. Effective worksite enforcement, including civil and criminal action, await those who fail to comply.

Maintaining eligibility guidelines, including strict I-9 compliance, is essential for employers to prevent crippling liability. The best way to establish these guidelines is with a knowledgeable partner. Paycor specializes in helping businesses of all sizes with Onboarding and HR solutions, offering trusted guidance to a sometimes overwhelming process. Contact us to see how we can best serve you.