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Worksite enforcement expected to increase under Trump administration
With President-elect Donald Trump's administration poised to focus on immigration enforcement, employers can avoid big fines by developing a comprehensive I-9 compliance program, which should include training, self-audits and an investigation-day action plan.
U.S. Immigration and Customs Enforcement (ICE) has cut back on workplace audits over the last few years, but a recent increase in penalties for immigration-related workplace violations—including the employment of undocumented workers—and a new administrative direction for the agency may result in more investigations.
Employers must properly complete a Form I-9 for each person they hire or they may be subject to criminal and civil sanctions.
Monetary penalties for knowingly hiring and employing undocumented workers range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for technical violations, which include failing to produce a Form I-9, range from $110 to $1,100 per violation. See the summary of Civil Fines and Criminal Penalties for Form I-9 and Immigration-Related Employment Discrimination Violations.
Get It Right the First Time
It is important for employers and their HR staffs to have the right information about the Form I-9 and to receive training on how to properly complete it, said Francine Hill, chief of outreach with the verification division at U.S. Citizenship and Immigration Services (USCIS).
"We encourage all employers and their HR staffs to visit I-9 Central, the official source of Form I-9 employment eligibility verification," Hill said. Employers can access the free Handbook for Employers: Guidance for Completing Form I-9 (Employment Eligibility Verification Form) on the site, as well as free webinars, Form I-9 video vignettes and other learning resources. Hill also suggested HR staff subscribe to the agency's e-mail list and follow it on Twitter to get periodic updates.
Be Diligent, Inspect Thyself
In addition to providing training to relevant staff, employers should be conducting regular self-audits, experts said.
[SHRM members-only HR forms: I-9 Audit Checklist]
"Conducting routine self-audits helps the employer identify any deficiencies in the process and spot any trends," said Julie Myers Wood, CEO of investigative and compliance consultancy Guidepost Solutions and director of ICE under former President George W. Bush. "Doing self-audits also allows for corrective action and additional training."
However, she cautioned employers to be mindful of the methodology and randomness of the sample used for a self-audit, so as not to appear to target a specific group of workers' forms.
Employers that are made aware that an employee has presented a fraudulent document for work authorization should give the employee an opportunity to provide a valid work authorization document, Wood explained. "If the employee is not able to provide valid proof of work authorization, the employee should be terminated," she said. "If the employer does not terminate the employee, it could be fined for knowingly continuing to employ that individual."
Self-audits should be completed annually and supervised by an attorney, according to Kevin Lashus, an attorney with FisherBroyles in Austin, Texas. "Failing to adequately implement a transparent remediation program when auditing I-9s may result in allegations of tampering with a federal form," he said. "As a general rule, most lawyers recommend that a licensed attorney be involved in drafting the remediation protocol and in supervising the remediation process. That way, the entire project is conceivably protected."
For employers that decide to go it alone, Lashus recommended audits not be conducted by anyone with responsibility for the initial verification.
Like conducting poorly executed self-audits, correcting I-9 forms without following proper protocol can lead to negative consequences. According to ICE guidelines, "employers are encouraged to make corrections to I-9 forms in a very clear and transparent manner while noting the date of correction and the initials of the individual updating the form," said John Fay, vice president and general counsel at the LawLogix division of Hyland Software, a company that specializes in cloud-based I-9, E-Verify and immigration compliance services.
"Errors or omissions in section 1 should be corrected by the employee, while mistakes in sections 2 and 3 should be corrected by the employer representative to the extent they are able to do so," Fay said. "It is important to note, however, that some ICE offices prohibit the altering or correcting of I-9 forms after a Notice of Inspection has been served."
Wood said employers need to be careful when making corrections. "Sometimes we have seen employers inadvertently add errors to I-9s by changes made during their internal audit process," she said.
Under no circumstances should an employer simply create a new I-9, and entries on paper forms should never be erased. Any change, update or modification to an electronic I-9 must be recorded in an audit trail that shows the date of correction, the person performing the update and the specific information that has been corrected, Fay said.
Be Ready for Inspection Day
Typically, an ICE investigative agent and an auditor will show up unannounced at the employer's principal place of business or at a specific worksite with a Notice of Inspection in hand. The agency can audit any business on a random basis or through tips from the public or other government agencies.
"Employers are under no obligation to provide the I-9 documentation when the notice is served," Fay said. Employers have three business days to produce the Forms I-9 for all current employees and former employees for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer. Often, ICE will request the employer provide supporting documentation, which may include a copy of the payroll, a list of current employees, articles of incorporation and business licenses.
"While this initial encounter may seem quite benign, there are some potential traps for the unwary," Fay said. "For example, the visitors may casually ask questions relating to the hiring or I-9 protocols at your organization, and these responses may eventually be used against you as the investigation proceeds. It's very important that employers establish a detailed audit preparedness protocol which specifies quite clearly the steps which should be taken when ICE knocks at the door."
It's crucial that front desk staff know exactly who in the company to contact, whether it be human resources or the CEO, according to attorneys.
"Counsel should be notified immediately, and an HR professional or legal counsel should be designated as the ICE liaison moving forward," said Sari Long, an attorney with Faegre Baker Daniels, based in Washington D.C.
Long added that during the inspection, staff should be courteous and available and should respond to requests for information or clarification promptly. Employees "should not provide more information than is requested or allow ICE to inspect documents that appear outside the scope of the Notice of Inspection or subpoena and [should] never attempt to destroy or hide any documents," she said.
Keep I-9s Within Reach
It's critical that companies are able to produce the I-9s that are requested as part of an audit within the three business days that ICE requires.
"This means ensuring that current employee lists are up-to-date and available, that I-9s are organized in a fashion that allows for production as requested, and that there is, at the very least, an I-9 on file for each employee," Long said.
Employers should be prepared to make copies of their I-9s before providing the originals to ICE, she added. "This ensures that there is an onsite record of the original I-9s produced in case there is a discrepancy later because ICE misplaced a form or if there is some other mistake in the chain of custody. It will also enable the employer to carefully check the forms produced and handed over to ICE as compared to the documents requested in the Notice of Inspection."
Once the inspection is completed, ICE will notify the audited party of the results in writing. The most common notices indicate compliance, suspect documents, technical violations and an intent to fine.
If charged with violations, the employer has the opportunity to either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer within 30 days of receipt of the notice.
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