Immigration and Customs Enforcement has more than quadrupled worksite enforcement investigations in the last year. With the increased enforcement efforts, this is a great time for U.S. businesses to reevaluate the company’s procedures to ensure that it remains in full I-9 compliance. Depending on how the business operates, keeping copies of I-9 supporting documentation may be the right answer – if it is done the right way. Otherwise, optional document retention could create more problems than are solved.
Consequences of Non-Compliance
If a company is found to be non-compliant for the Form I-9 process, consequences can vary. However, it is worth noting that violations are issued on each case of non-compliance that is found. If a business has multiple employees that are found to be non-compliant, the penalties can stack up quickly and produce devastating effects.
Criminal violations can be issued to companies with documented patterns of recruiting, hiring, or referring employees not eligible to work in the U.S. Civil violations tend to deal with hiring or continuing to hire an unauthorized alien, committing document abuse or fraud, discrimination, and more offenses.
Depending on the number of violations and the penalties that they carry, consequences could result in heavy fines, a loss of workforce, or possibly even the loss of a business license. Each of these situations can negatively impact a company’s bottom line and overall morale.
With a stronger push for immigration laws to be strictly enforced, American businesses are quickly learning the importance of being Form I-9 compliant. In the last few years, the nation has seen the number of government investigations into I-9 compliance almost quadruple. While a company may not be able to escape a government audit, it can be proactive in ensuring its I-9 compliancy.
The Form I-9 and the Importance of Compliance
The Form I-9 is a legal document that employers in the United States must have their employees complete to determine their eligibility to work in the country. The form is a one-page document that consists of three main sections:
- Section 1: Employees are responsible for accurately completing this section of the Form I-9 by their first day of employment.
- Section 2: Employers are responsible for collecting and authenticating required I-9 documents from employees to verify their eligibility for employment within three days of their start date.
- Section 3: Employers will need to complete this section in the case that an employee’s work authorization expires, their name is legally changed, or they are rehired within three years of the date listed on the Form I-9.
In order for companies to be compliant, each employee’s Form I-9 must be completely filled out and accurate, the required identification documents be acceptable, and timelines and guidelines of all three sections must be observed. While it may sound like a fairly simple process, it can be quite complex and often requires the United States Citizenship and Immigration Services’ Handbook for Employers M-274. Many companies are also choosing to enlist the help of digital I-9 compliance software as an extra layer of protection and to help streamline the process.
For employers who have a large number of employees and in multiple locations, the process of becoming I-9 compliant becomes even more difficult. One of the primary issues is storage. All forms must be stored properly and be accessible to management and the government in the case of an audit.
While there are many reasons companies need to be I-9 compliant, the primary reason is because it is the law via the 1986 Immigration Reform and Control Act. When a company is found not to be in compliance with Form I-9 protocol, it could be putting its entire operation at risk. It is not uncommon for companies to be issued civil or sometimes criminal penalties for these violations, all of which can result in hefty fines that can impact a company’s bottom line.
However, by understanding what it means to be I-9 compliant, why it is important, and what to expect if your company is audited by the government, you can ensure your company is adequately prepared.
What happens during an ICE worksite investigation or audit?
In the event of an ICE audit, a Notice of Inspection (NOI) is typically provided to an employer. Legally, the employer has three days to provide the agency with its I-9 forms and other forms of documentation such as a business’ Articles of Incorporation, licenses, list of current employees, and even a copy of the payroll.
After the proper forms and documentation have been presented to the government agency, the agency conducts an inspection of the I-9 forms. While it is possible for the agency to grant the company ten days to make appropriate corrections for technical or procedural violations, the company could still be fined for mistakes. These financial penalties can range from several hundred to more than a thousand dollars per violation.
Fines are commonly issued in the case of a criminal violation, which may include a company’s documented pattern of using fee-based recruiting, hiring, or referrals of employees unauthorized to work in the U.S. Unfortunately, punishment can extend beyond fines and may result in debarment by ICE, which can prevent the company from being considered for federal contracts and receiving certain government benefits.
Common Results of an I-9 Worksite Investigation
Once ICE has completed reviewing the I-9 forms and documents, it typically notifies the party that was audited in writing of the outcome. Here are several more common types of notifications and what they mean.
- Notice of Inspection (NOI) Results: A result by this name generally comes in the form of a letter to the audited party to let the representatives know that the company was found to be compliant. This document can also be referred to as a compliance letter.
- Notice of Discrepancies: This result lets an employer know that there was some difficulty determining an employee(s)’ work eligibility based on the paperwork submitted by the employer. The employer is then expected to share that notice with the employee so it can present additional documentation, if available, to establish eligibility to work.
- Notice of Suspect Documents: An audit result by this name is a step down from the previous two results. This type of notification lets the audited party know that ICE has found an employee that is unauthorized to work, and that civil and criminal penalties could ensue. That said, ICE generally gives both the employee and employer a chance to present additional documentation that proves the employee’s eligibility to work if the audited party or employee deem the finding to be an error.
- Warning Notice: This audit result can mean that some substantive verification violations were found, but may not warrant a fine due to the expectation of an employer’s future compliance.
- Notice of Technical or Procedural Failures: This notification makes an employer aware of technical violations that were found. The employer then has ten business days to correct the forms with uncorrected technical and procedural failures being subject to fines.
- Notice of Intent to Fine (NIF): This type of notification generally equals dollar signs. A notice of intent to fine can mean that an employer may be issued a fine due to violations related to substantive, uncorrected technical errors, knowingly hiring, and continuing employment of unauthorized workers.
How Digital I-9 Compliancy Software Can Help
Digital I-9 compliance software is quickly becoming the wave of the future. Companies are turning to this resource to help them stay I-9 compliant. In general, the software helps minimize human error and provides timely reminders for action items employers must complete to stay compliant.
Compliancy software provides employers and employees with a basic checklist of information needed to complete the Form I-9. This helps employees prepare ahead of time and gives employers a visual reminder of what is completed and what still needs attention.
One of the most user-friendly features of compliance software is the alerts. The program should catch blank or incomplete fields and missing signatures. Any of these things could cause a company to be found non-compliant, but the software program helps to find these inconsistencies and draw an employer’s attention to them before submitting the form. The program should also assist in tracking expired Form I-9 documents, so employers are able to work with the employee to attain updated documents before they become a compliancy issue.
Another benefit of implementing I-9 compliancy software is that it offers document archiving and centralized reporting. Less paper is required when forms and required documents are digitized, and it also helps the program track which forms need to be retained and which do not. Centralized reporting allows employers to provide requested I-9 information quickly and efficiently in the case of government audits. As an added bonus, centralized reporting can be utilized at any point by management, which can help them stay proactive about their company’s I-9 protocol.
With thorough understanding of the Form I-9, its guidelines and regulations, and possibly the assistance of digital I-9 compliancy software, employers can have more peace of mind about being proactive and keeping the company in good standing with the government.
The Form I-9 is a legal document provided by the government that must be completed by both employers and employees within the proper timelines stated on the form. The form gathers important personal information from the employee regarding work eligibility, requires employers to verify identification documents provided by the employee, and handles proper documentation for eligibility follow up and rehires. The Form I-9 cannot be utilized to perform a background check.
E-Verify is, in some cases, an optional add-on service that complements the Form I-9. The system allows enrolled employers to match employees’ Form I-9 information against records accessible by the Department of Homeland Security and the Social Security Administration. E-Verify is not to be used for a background check as it only verifies work eligibility and does not review a potential employee’s criminal history.
A company that requires its employees to have a legal work eligibility status and a background check should be Form I-9 compliant, consider utilizing E-Verify, and do a thorough background check or hire an employment screening service.
Immigration officials executed the largest workplace raid in more than a decade on a north Texas electronics repair business in early April, resulting in criminal charges against CVE Technology Group and more than 280 employees. The operation in Allen, Texas is the latest headline-grabbing component of immigration enforcement and is yet another signal to businesses to either align with the federal government’s culture of full I-9 compliance or suffer the consequences. In this case, the consequences may include jail time and fines for company officials and deportation for its undocumented workers.
A Reminder of Why We Do What We Do
It’s easy to fall into a mode of merely complying with the details of the regulations that shape the slices of the world we inhabit, but a look at how the I-9 culture evolved can remind us that it isn’t just busy work the government imposes upon us. Government is by habit and nature reactive, so the current version of the Employment Eligibility Verification form (I-9) is the latest iteration resulting from a series of events leading up to a form that serves an interest. Understanding its history can be instructive in showing us that collection and maintenance of this data is an expression of modern societal values, regardless of whether they are right or wrong.
A Little History On The I-9 Form
The founding fathers of the United States promoted a policy of open immigration, inviting all to our shores to seek their fortunes. The restrictions in those early days were placed on naturalization—you could come here to work, but you couldn’t vote or hold office unless you became a citizen. This was the general attitude until after the Civil War, and today, an enduring legacy of that policy is the Constitution’s requirement that a president must be born in the U.S.
In 1921, Congress developed the National Origins Formula which used the numbers of foreign-born residents from the 1910 census to establish proportional quotas by country for future immigration. The reference census shifted over the years to support the values of the day, but immigration was essentially frozen during the Depression. The Immigration and Nationality Act of 1952 mainly changed the quotas yet again, but the 1965 amendments to that law abolished the national origins system altogether and focused priorities instead on immigrants with skills our workforce needed.
1986 brought us to the foundation of current policy with the bipartisan passage of the Immigration Reform and Control Act which, for the first time, created penalties for knowingly hiring undocumented workers. The idea was to preserve the American tradition of legal immigration while putting a stop to the illegal variety. The fear of terrorism generated legislation in 1996 that would vastly increase the number of deportations for criminal activity, and then 9/11 happened, perpetrated by 20 foreign terrorists who had entered the country legally.
The attacks altered the thinking in a lot of areas, but Congress has yet to agree on a path to immigration reform. Instead, it created the Department of Homeland Security (DHS) to, in part, oversee immigration through three newly formed agencies: US Customs and Border Protection, Immigration and Customs Enforcement (ICE) and US Citizenship and Immigration Services (USCIS). USCIS is responsible for documenting alien employment authorization (the I-9) and running the E-Verify program, while ICE is responsible for enforcing I-9 compliance. Other divisions within DHS are meant to ensure that these provisions are not applied by businesses or the government in a discriminatory manner.
The introduction and reintroductions of the DREAM Act over time have, however, produced an unofficial consensus that undocumented immigrants who graduate from American high schools and attend college or join the military should be granted a path to citizenship. President Obama bolstered this value with executive orders effectively delaying the deportation of such people.
Immigrant visas are still limited, but immigrants generally become eligible for citizenship after five years of legal residence unless they were admitted through temporary work permit or student visa, neither of which provides a path to citizenship. Illegal immigration peaked at over one million in 2000 but is thought to have declined by half by 2009.
So Where Does that Leave Us?
Employment in the US is considered the magnet that draws illegal immigrants, so the theory is that they will not come if they cannot work. Employer sanctions are therefore designed to make cheaper labor less attractive than compliance. This paradigm forms the basis for the regulatory plan that resulted in the I-9. By making employers liable for hiring undocumented workers, fear of punishment for noncompliance is what prevents these workers from attaining the financial means to remain in this country, and, the government hopes, deters others from entering illegally.
The I-9 form requires the employer to scrutinize the prospective employee’s identity papers. Employers need to check for two things: (1) to verify that this person reasonably appears to be who he or she purports to be and (2) to confirm that he or she can document an immigration or citizenship status that permits eligibility to work in the United States. By requiring that employers do so within three days, the government is ensuring that employers do not let this step fall through the cracks. By requiring a signature, the government is encouraging employers to be thorough in their examination of the presented documents and honest in their assessment under threat of perjury charges. By requiring employers to retain a form containing unexpired documentation for each employee, the government is holding them accountable for ongoing verification that the employee remains eligible to work in the U.S. Employers are, therefore, on the frontlines of executing this policy.
Regardless of an employer’s position on the various issues that make up immigration policy, ICE’s surge in enforcement actions and promise to expand them even further is the reality. The current administration continues to commit unprecedented amounts of resources to enforce existing immigration and employment laws. This means that the government is watching employers closely and won’t hesitate to investigate for any reason. If ever there were a good time to reevaluate I-9 compliance procedures so a business can survive an audit unscathed, it is now.
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.
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;
- 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.