2019 Primer To the Immigration and I9 Compliance Laws

FY 2018 saw the number of Immigration and Customs Enforcement (ICE) worksite investigations quadruple, so it’s a good time to consider how to be compliant with immigration laws and I-9s in 2019. The federal government is actively seeking companies that employ undocumented workers as a means of rooting out existing illegal immigration and deterring it in the future. The idea is that they will not come if they cannot work, and employers represent the main line of defense. ICE doesn’t need an excuse to check on whether you’re doing your part—agents may knock on your door for any reason.

Every indication is that this surge in enforcement will continue. ICE received over 12% of the Department of Homeland Security’s entire budget for FY 2019, and folded into this budget is funding for 3,312 additional staff to handle the increased caseload. At the same time, E-Verify received $131.9 billion to upgrade systems in preparation for making it mandatory for all businesses across the nation. The pressure isn’t letting up, and all you can do is be prepared when the auditors arrive. It’s a good time to tighten up procedures, and working with a knowledgeable partner to guide you in performing a self-audit is an ideal place to start. A self-audit can identify holes in the I-9 compliance process and give you notice to fill them before it’s too late.

Be Careful Not to Discriminate

The Immigration and Nationality Act of 1965 put an end to government-backed immigration preference for northern and western Europeans. Instead of continuing to set quotas by country, priorities were instead focused on family connections and adding needed skills to the workforce. The relevant provisions in this context, however, relate not only to methods of administering I-9s but also in auditing procedures. The law generally prohibits these types of conduct:

  • Unfair practices in documenting the I-9 and E-Verify;
  • Discrimination in citizenship or immigration status;
  • Discrimination by national origin and
  • Intimidation or retaliation.

When performing a self-audit, an employer may decide to review either all forms or a sample of forms. If the sample option is chosen, the sample must be taken in a neutral and nondiscriminatory manner. Criteria for the sample set must avoid even the perception of discriminatory or retaliatory intent. To accomplish this, do not self-audit based on an employee’s national origin or citizenship status or in retaliation for any reason. Consider the audit’s timing, scope and selective nature as well.

How to Correct I-9 Errors

Section One of the I-9 is always to be filled out by the employee, and an employer may not correct errors found there. Instead, the employee should draw a line through the mistaken information, correct it and initial and date the correction. If someone helps the employee to accomplish this task, that person’s information should appear in the preparer/translator block of the form. If the employee no longer works for the employer, a statement describing the error and why its corrections cannot be made should be attached to the form.

The employer should correct mistakes made in Section Two in the same manner. Mistakes should not be concealed—like with liquid paper—or backdated. If there are too many mistakes to reasonably correct on the original, a new I-9 may be generated as long as the incorrect version is attached and explained.

Miscellaneous Pearls of Self-Audit Wisdom

  • The forms required for eligibility verification change over time, but the important point is which forms were acceptable at the time the I-9 was completed.
  • If a self-audit reveals that a form was never completed or is missing, one should not be backdated. Instead, a form should be immediately completed, and the employer should enter the correct date of employment in Section 2. A statement explaining the error should be attached to the form.
  • If an employer subsequently concludes that the documentation presented by the employee does not appear genuine or accurate, the employer should give the employee the opportunity to provide acceptable substitutes. The simple fact, however, that a photocopy of acceptable documentation is unclear is not sufficient to question it—the employer must have a foundation for skepticism.
  • Simply requiring individual employees to complete new forms (absent a merger or acquisition) when errors are found should be avoided. Without sufficient justification, allegations of discrimination may arise. Exceptions may be made when systemic errors are found in the I-9 process that make deficient forms widespread.
  • It is illegal to knowingly employ an alien who is not authorized to work in the United States, and “knowingly” can be merely inferred in the course of exercising reasonable care. If your audit reveals such an employee, continuing to employ him or her places you outside the bounds of the law.

With each new ICE agent on the payroll, the chance of the agency’s attention falling on you increases. It no longer pays to take a chance with hiring cheaper, undocumented labor or phoning in I-9 procedures. It’s not too late to revise your approach, and a self-audit can give you a chance to solve problems before ICE auditors take an interest. It may not insulate you from all liability, but it will demonstrate good faith.

What To Expect When You’re Expecting…ICE Auditors That Is

Immigration and Customs Enforcement (ICE) has increased worksite investigations, making understanding I-9 audits more relevant than ever for business owners. When a negative audit can cause millions of dollars in fines and penalties as well as prison time, it pays to evaluate procedures and perform a self-audit before ICE does. The agency is particularly concerned with industries that (1) pertain to critical infrastructure or (2) have traditionally been known to exploit undocumented workers. But even an anonymous tip can bring agents to your door. Here’s an overview of what to expect with an ICE investigation.

Understanding I-9 Audits

The Immigration Reform and Control Act of 1986 mandated that employers verify both the identity and work eligibility of each employee thereafter and provided for civil and criminal penalties for violations. Subsequent regulations created the Employment Eligibility Verification Form (I-9) as the means and require employers to maintain I-9s for current employees always, and former employees for a time. The federal government has the right to inspect the forms, and that process begins with serving a Notice of Inspection (NOI), giving the employer a minimum of three business days to produce an I-9 for each employee. The NOI may also request additional documentation such as a payroll copy, Articles of Incorporation or business licenses. ICE audits the forms and documentation, inspecting them for technical or procedural violations.

The most common notifications are these:

  • Notice of Inspection Results—Often called a “compliance letter,” the business is told it has been found to be I-9 compliant.
  • Notice of Suspect Documents—The business is told that an employee’s documentation is insufficient and he or she is therefore unauthorized to work. Both the employer and employee may attempt to establish legitimacy, but the employer is open to criminal and civil penalties for continued employment.
  • Notice of Discrepancies—ICE has been unable to determine work eligibility so additional documentation is required to verify status.
  • Notice of Technical or Procedural Failures—If errors are found, the employer has ten business days to make corrections. If left uncorrected, technical and procedural failures become substantive violations.
  • Warning Notice—A warning is issued when substantive violations are found, but the employer is expected to comply in the future. These do not reach the level of financial penalty.
  • Notice of Intent to Fine—Fines may result for:
    • Substantive violations;
    • Uncorrected technical violations;
    • Knowingly hiring undocumented/ineligible workers, or
    • Continuing to employ undocumented/ineligible workers.

If the case reaches the level of fines, each violation will be detailed, and the employer may either negotiate a settlement or request an administrative hearing within 30 days. If he does nothing, a Final Order is issued.

Determination of Fines

Fines are based on an equation derived from two schedules, typically calculated from the date of inspection:

Knowing Hire/Continuing to Employ Fine Schedule

+

Substantive/Uncorrected Technical Violations Fine Schedule

Each schedule can be enhanced or mitigated by what ICE calls the Enhancement Matrix.

Knowing Hire/Continuing to Employ Fine Schedule—ICE will divide the number of these violations by the total number of employees for the violation percentage. The schedule is allocated by percentage and increases with the number of times the employer has violated this law. The range is currently from $548 to $19,242 but is subject to change with inflation.

Substantive/Uncorrected Technical Violations Fine Schedule—ICE will divide the number of violations by the total number of employees for the violation percentage. Also allocated by percentage, this schedule increases on whether it is the employer’s first, second or third+ offense. The range is currently from $220 to $2,191.

Enhancement Matrix—Each schedule’s fine may be enhanced or mitigated by up to +/- 5% based on the following six factors:

  • Business size;
  • Good faith;
  • Seriousness;
  • Unauthorized aliens;
  • History and
  • Cumulative adjustment.

While this is the typical means of determining fines, violations can also result in:

  • Additional civil or criminal penalties for a pattern of violations;
  • Debarment from government contracts;
  • Back pay for individuals discriminated against, or
  • Being required to hire individuals discriminated against.

Recheck Your I-9 Procedures

ICE’s goal with its surge in investigations is to promote a “culture of compliance” to enhance public safety and national security while protecting lawful companies from unfair competition. The safest way to live in such a culture is to comply fully with it. I-9s are legal documents, and businesses are liable for administering them properly and for keeping up with changing immigration and employment laws. Performing a self-audit can be a useful exercise to reinforce I-9 compliance procedures. I-9 software can be helpful in filling out and tracking the forms and expiration dates, as well as incorporating changes to the law and regulations. Whatever your approach, it’s preferable to have a solid system in place, just in case ICE comes knocking.