As the Trump administration’s crackdown on illegal immigration proceeds on numerous fronts, employers increasingly find themselves caught in the crosshairs. In fact, U.S. Immigration and Customs Enforcement (ICE) recently announced that it commenced approximately twice as many worksite investigations and I-9 audits in the first seven months of FY2018 (which began on October 1, 2017) as it did in all of FY2017. This dramatic upsurge is consistent with the December 2017 comments of then-Acting ICE Director Thomas Homan that he wanted “to see a 400% increase” in ICE’s worksite enforcement operations.
The Importance of Proper Form I-9 Compliance
In today’s environment, employers must be proactive to make sure they don’t unwittingly find themselves in hot water with ICE. The key to avoiding ICE problems is rigorous Form I-9 compliance. ICE is only required to provide a three-day notice of an I-9 audit; if your Form I-9s are not in order, you can face substantial monetary liability.
Employers must complete a Form I-9 for every new hire, regardless of citizenship or immigration status. Even one missing or incomplete Form I-9 can result in a violation, and the fines typically increase significantly as the number of violations discovered goes up. In addition, if an ICE audit reveals that there are unauthorized employees in the employer’s workforce, shoddy Form I-9 compliance can be considered evidence that the employer had constructive knowledge that those employees were unauthorized. This can result in even more exposure.
What Specific Measures Should Employers Take?
The time to make sure your Form I-9 compliance is in order is now. These tips can help eliminate or reduce your potential I-9 liability:
- Training. Make sure that the company representatives responsible for Form I-9 compliance understand the process and are committed to doing it correctly. The Form I-9 is only two pages long, but it can be confusing, and completion errors are common. Proper training is essential.
- Check the form. Use the correct version of the Form I-9. The USCIS periodically issues a new Form I-9, and it is a violation to use an out-of-date version.
- Timeliness. Make sure that your Form I-9s are completed on time. You may complete a Form I-9 as soon as the new hire accepts employment, but you must complete it no later than the third day of employment.
- Separate files. Keep your Form I-9s in a separate file (not in the personnel file). In the case of an ICE audit, you will have very little time to produce your I-9s. Being able to locate them immediately is critical, as that will give you time to review – and potentially make appropriate corrections (which is permissible) – before turning them over.
- Re-verify when necessary. Make sure that any employees with temporary work authorization (g., working on a non-immigrant visa or a time-limited Employment Authorization Card) are timely re-verified. A good way to do this is to use a tickler system that provides reminders when re-verifications are due.
- Pay attention to document retention. Implement a protocol for discarding those Form I-9s that you no longer have to keep. Employers must keep Form I-9s for all current employees. Upon termination (for any reason), an employee’s Form I-9 must be maintained for three years after hire or one year after termination, whichever is longer. Make sure that your Form I-9s are kept for the required period, but have a procedure for discarding those that are no longer needed.
- Audit. Conduct an internal Form I-9 audit. Having a trained HR professional or other independent third-party review the Form I-9s already on file gives you an opportunity to identify and correct errors and get any missing Form I-9s completed. It’s easier and less stressful—and will be viewed much more favorably by ICE—if you get your Form I-9s in shape before ICE shows up. Be sure to make any necessary corrections transparently and in accordance with ICE’s published guidance.
- Have a plan. Because you will typically receive only three days’ notice of an ICE Form I-9 investigation, it is essential to have a response plan in place. Identify beforehand the personnel who will communicate with ICE and coordinate the effort to respond to ICE’s inquiries. Being unprepared and making mistakes when ICE comes calling often leads to serious negative consequences.