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I-9 Immigration Compliance-How to Advise Employers

On September 30, 2013, the Department of Homeland Security (DHS) ends its fiscal year.  As we look back on 2013 we will see that Immigration Customs and Enforcement (ICE), the principle investigative arm of DHS, continues to focus on employer compliance.  According to reports, ICE audited over 3,000 businesses in 2012. How does that compare to prior years? In 2007, ICE conducted 250 workplace compliance audits, 2008 that number doubled to 503. In 2009 the amount of I-9 audits more than doubled to 1,444, 2000 in 2010 and 2,496 in 2011. From fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million.  Statistics released by ICE in July 2012 reveal that overall $87.9 Million in fines have been imposed on employers for violations. In 2012 there were 520 criminal arrests tied to worksite enforcement investigations.  Criminal charges range from harboring to knowingly hiring illegal aliens.  Statistics for 2013 are expected to be released January 2014 the numbers for are only expected to be higher.  

According to ICE their investigations are based on leads and tips obtained from a various sources.  While ICE claims that investigations are primarily focused on critical infrastructure and key resources, no industry, regardless of their size, type or location is excluded from complying with the law or being the subject of an ICE audit.  No business is exempt. The inspection process is initiated by issuance of a Notice of Inspection (NOI), which compels the employer to provide its Forms I-9 for inspection.  How do you advise your clients to best safeguard their business should ICE come knocking at their door?

The Immigration Reform and Control Act (IRCA) of 1986, 8 U.S.C. § 1324, 8 C.F.R. §§ 274a.1 et seq requires all employers to verify the identity and work eligibility of all employees hired after November 6, 1986.  IRCA established criminal and civil penalties for knowingly employing unauthorized workers.  8 C.F.R. § 274a.2 defines the Employment Eligibility Verification Form I-9 as the means of documenting this verification. Employers are required to maintain for inspection original Forms I-9 for all current employees.  For former employees, IRCA requires that employers retain Forms I-9 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, list of current employees, Articles of Incorporation, and business licenses.  

The key to compliance is properly filling out and maintaining Form I-9.  There have been several versions of the Form I-9.  Effective May 8, 2013, all new hires by U.S. employers should fill out the new version of Form I-9, which is identified in the lower, left-hand corner of the form with the label “Form I-9 03/08/13 N”.  The use of the new version of Form I-9 is mandatory.

Countless blogs, articles and seminars provide guidance regarding the most complex 1-page Form I-9.  The government has even printed a 70 page Handbook for Employers M-274 just to deal with Form I-9.  Here are 10 suggestions:
  1. Have a comprehensive I-9 audit performed by a knowledgeable professional who actually practices in this area of the law.  Often employers decide to perform their own audits without having the proper training or background.  Don’t engage in self audits without prior training.
  2. Read the M-274 Employer Manual.
  3. Assign a specific individual or group of individuals who will be responsible for filling out and maintaining the Form I-9 including an employee who will supervise the staff and the I-9 process. 
  4. After an audit of the existing I-9s is completed and all errors have been noted and reported, review the findings. Be trained on correction procedures before starting the correction process.  
  5. Develop a written Immigration Compliance Policy.  Complex? It doesn’t have to be. It’s a policy that lays out the steps the company takes to be compliant.  ICE will request this document should they ever come knocking.
  6. Fill out the Form I-9 within 3 days of employment.
  7. Don’t violate discriminatory practices by asking an applicant to complete an I-9 before making a job offer.
  8. Review each employee’s documents to be certain they’re on the new version of the list of acceptable documents and that they appear genuine. Don’t ask new hires for specific documents or more documents than the I-9 requires.
  9. Make and retain copies of all I-9 documentation provided.
  10. Follow up on expiring documents that limit the employee’s authorization to work.

Stay in the loop on all changes related to this area of the law because failure to comply with IRCA’s I-9 rules can result in significant penalties, fines, loss of business, criminal charges and imprisonment.  

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U.S.C. citation

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CFR citation DOJ penalty assessed after 8/1/2016 ($) 1 DOJ penalty assessed after 2/3/2017 ($) 2 8 U.S.C.     IRCA; Unfair immigration-related employment practices, document abuse (per individual discriminated against).     …