5 Steps Employers of Immigrant Workers Can Take to Prepare for a Potential Increase in I-9 Investigations

It’s been widely reported that the current administration plans to hire up to 10,000 more Immigration and Customs Enforcement (ICE) agents, with the White House stating a desire to “take the shackles off” ICE. This, combined with the administration’s “America First” initiative, the Department of Justice’s (DOJ) stricter enforcement of the Immigration Reform and Control Act of 1986(IRCA) and the increased fines (implemented under the previous administration) for noncompliance with the IRCA by the U.S. Citizenship and Immigration Services (USCIS), can mean big changes coming for employers.

Cynthia Lange, partner at Fragomen, Del Rey, Bernsen & Loewy, LLP--one of the world’s leading immigration firms—says that “there is a heightened risk of I-9 audits, as the president's executive orders have made his enforcement priorities clear. Many companies are doing reviews of their own I-9s in preparation for an increased number of ICE audits."

We expect that ICE will be conducting record numbers of worksite enforcement investigations, criminal prosecutions and audits for inspections and administrative fees. These ICE audits and investigations can result in employers having to settle technical violations for administrative shortcomings, even if they do not have an undocumented worker on payroll.

1. Make sure all forms are correct and up-to-date

Cynthia also advises that “to avoid unnecessary risk, best practice is to purge all documents that your company is not obligated to retain." Indeed, failing to complete or maintain I-9 documentation may result in harsh financial penalties. Employers are expected to maintain records for all active employees hired after November 6, 1986. This includes I-9s for former employees until one year from termination or three years from hire--whichever period is longer.

Fines for incorrect or missing information could cost an employer tens of thousands of dollars per error. With one form per employee and multiple common errors in each form, you can see how quickly those penalties add up.

To many employers, the I-9 appears to be just a simple two-page document that is part of necessary and routine hiring paperwork. Don’t be fooled! In fact, the USCIS provides a six-page how-to manual filled with rules on completing it correctly.

Abercrombie & Fitch reached a settlement with ICE for errors in I-9 documentation found in a 2008 audit. The settlement included a $1 million fine and a requirement to modify electronic I-9 management systems.

The USCIS recently issued a new I-9 form that, as of September 18, 2017, is the only I-9 form acceptable for submission. The new form has a few changes from the old form, including updated “list C” documents that can be used as certification or report of birth, as per the Department of State.

2. Prepare thoroughly when you receive a notice of inspection

When ICE wants to audit an employer’s I-9 files, they typically hand-deliver to the employer a notice of inspection (NOI) and subpoena that demands I-9 forms for all current employees (and often all former employees) for the preceding three years. You should contact your immigration counsel or HR partner immediately upon being served an NOI.

Once you receive an NOI, you have a three-day period to comply with the NOI, which you may waive. We suggest that you do not waive that period. During that three-day period, you will need to do a full review of I-9s to be able to provide a list of all current and former employees. This list should include the following information on all current and former employees going back three years:

• Hire and termination dates
• Payroll records
• Quarterly wage and hour reports
• Related companies and subcontractors
• Additional information in support of your employment practices or as required by the NOI

3. Be sure to follow instructions for re-verification

Re-verification of I-9s is required for employees with certain citizenship statuses. These statuses include employees with:

• Employment authorization cards
• Most visa-holders, such as J1, H-1B, etc.
• Foreign passports with I94 stamp and expiration dates
• Terminated employees rehired within three years of their original I-9 date

As an employer, you will need to track and update each employee’s supporting I-9 documentation. USCIS recommends also re-verifying social security number and name changes. For example, at the time of hire, an individual authorized to work will provide documentation showing their eligibility to work in the U.S. This supporting documentation includes an expiration date. It is the employer’s responsibility to monitor that date and request new documentation prior to expiration.

Manually tracking expiration dates for supporting documentation and sending timely reminders to workers for updated documents is extremely time-consuming and is prone to human error on both sides. Even with complicated spreadsheets and filing systems, employees can easily slip through the cracks unverified, causing your business to be out of compliance.

TriNet’s comprehensive I-9 compliance tools make tracking and re-verification much easier. We notify TriNet clients 120 days prior to I-9 expirations. This allows ample time to collect the proper documentation, as needed, from their employees and to apply for re-verification. These notices are sent at regular intervals until either the re-verification is received or the date of expiration is reached, at which point a final notice to terminate the employee is sent.

4. Take quick action on any notices you receive from ICE

An ICE inspection can take between two months to two years to complete. After completing their investigation, ICE will provide notices to the employer on its findings. One possible notice you may receive is a notice of suspect documents, which is provided if ICE cannot authenticate valid work authorization for certain employees. The listed employees in the notice are then given an opportunity to present additional documentation to demonstrate valid work authorization.

If ICE identifies violations that do not warrant a penalty, they might issue a warning notice to you, as the employer. If you receive such a notice, you will usually receive a second NOI within six months to a year. It is wise, then, to ensure you file or adjust the flagged documentation as soon as you can so that you can resume business as usual.

5. Know the potential penalty to employers for non-compliance with I-9 paperwork

Penalties for noncompliance with IRCA can range from civil fines and debarment from government contracts to criminal penalties, repayment of lost wages and rehiring of individuals discriminated against. Civil fines can be imposed for simple paperwork violations such as failing to complete required fields or listing items in an incorrect field.

Fines for I-9 form violations have increased from the previous $110-$1100 range to $216-$2126, effective August 1, 2016.

Similarly, fines per worker have increased from the previous $375-$3200 range to $445-$3563, effective August 1, 2016. Repeat offenders could face a maximum penalty of up to $21,563 per worker. These fines also increase per subsequent order. Frequent offenders may face a maximum fine of $17,816 per worker.

To find out how TriNet can help you prevent incurring these penalties, call us at 888.874.6388. 

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