WARNING: The ICEman Cometh!

Unauthorized immigrants continue to be a “hot” topic for Congress which means employers should expect an increase in enforcement of existing legislation, including more Form I-9 audits and worksite raids conducted by the Department of Homeland Security’s Immigration and Customs Enforcement (ICE).

Recent ICE Audits and Penalties

• ICE audited 1,360 organizations in 2017, resulting in 71 indictments and 55 convictions of business owners and managers.
• In 2017 Asplundh Tree Experts Co., a tree trimming and brush clearing company, paid an $80 million judgment plus $15 million to satisfy civil claims (total of $95 million) after pleading guilty to willfully hiring undocumented workers from 2010 to 2014.
• In January, 2018 nearly 100 7-Eleven stores were targeted in the largest workplace immigration enforcement operation conducted under President Trump.
• ICE agents conducted workplace raids on 77 businesses in San Francisco, Sacramento and San Jose on Feb. 2, 2018.
• Civil penalties for knowingly employing unauthorized immigrants can range from $539 to $21,563. Form I-9 paperwork violations carry a penalty of $216 to $2,156 per worker.

Conducting an Internal Audit of Form I-9 Documents

Based on these examples, it would be wise to review how your business complies with government requirements and to conduct an audit of Form I-9 documents for all employees.

Key Guidelines for Employers

Avoiding Discrimination Based on Citizenship Status

Applicants cannot be discriminated against based on their citizenship status, except in rare circumstances when required by federal contract. Job postings, application forms and interviewers should not inquire about citizenship, instead asking “Are you authorized to work lawfully in the United States for [insert company name]?”

Proof of Work Authorization

Applicants may not be required to provide proof of work authorization until after there is an accepted job offer. Employers may not specify which documents listed on Form I-9 the new hire must provide.

Completing Form I-9 on the First Day

Form I-9 should be completed on the first day of employment. The employee must provide original valid documents for inspection within three days of starting work. Failure to provide such documentation means that employment must be terminated (however, the employee must be paid for any time worked).

Inspecting Documents and Ensuring Authenticity

The employer or company representative must inspect original documents and make a reasonable determination of authenticity. Photocopies are not acceptable. The document title, issuing authority and expiration date must be recorded in the appropriate section.

Matching Employee Information

The employee’s name on the Form I-9, on identity and employment authorization documents and the employee’s signature should all match. Documents are not valid after their expiration date.

Reviewing and Correcting Form I-9

The employer or company representative should review the Form I-9 to ensure that all information is filled in completely and accurately before signing the form.

Retaining Form I-9s

Any changes to Form I-9 should be initialed and dated by the person making the correction. According to the law, Form I-9s must be retained for three years after date of hire or one year after termination of employment, whichever date is later. However, most employers retain Form I-9s for all active employees on payroll.

Maintaining I-9 Forms

Hard-copy I-9 forms should be maintained in a separate file from employees’ personnel files, or maintained electronically in compliance with the law. Copies of the documentation retained with Form I-9 must be legible, if copies of documentation are made.

Complying with government regulations can take time away from all the other responsibilities that go along with running a successful and profitable business. An HR professional can help you with all of your human resources needs, from hiring the right employees, running background checks, creating employee handbooks that include anti-harassment policies and procedures, managing employee performance, staying legally compliant, automating employee records, and anything else you need to create an environment where employees can provide the services that you need to run your business.