What Employers Should Know About ICE's Recent I-9 Crackdown
The Trump Administration's "zero tolerance" policy on illegal immigration has not been limited to heightened enforcement of immigration laws along the borders. As recent activity on the part of U.S. Immigration and Customs Enforcement ("ICE") makes clear, employers are also starting to feel the heat.
Recently, ICE released statistics showing that it has made good on the promises made in late 2017 by ICE Deputy Director Tom Horman to increase the number of worksite inspections to deter employers from hiring people without valid work authorization. These efforts resulted in 3,510 worksite inspections (including 2,282 I-9 audits) between October 1, 2017, and May 4, 2018 - more than a threefold increase over the previous fiscal year.
This trend of dramatically increased workplace inspections shows no sign of slowing, with one senior ICE official saying that the agency would eventually like to conduct as many as 15,000 audits per year.
Given ICE's renewed focus on workplace inspections, every employer would be wise to act now to make sure that its I-9 house is in order.
What Is At Stake?
Once audited, employers can face steep penalties for non-compliance with the federal immigration laws. In particular, the Immigration Reform and Control Act of 1986 ("IRCA") requires all employers - regardless of size - to use the Form I-9 to verify that all U.S.-based workers are legally authorized to work in the country. Employers found to have violated their paperwork obligations under IRCA face civil penalties of up to $2,191 per violation.
The penalties under IRCA for knowingly hiring or continuing to employ unauthorized workers are much more severe - up to $21,916 per violation. Further, an individual employer can face criminal fines - and even jail time - if convicted of engaging in a pattern or practice of knowingly hiring unauthorized workers.
What Employers Can Do Now
In order to be prepared for a potential audit by ICE, employers would be wise to conduct internal audits of their I-9 practices. An I-9 audit is aimed at ensuring that the employer has procedures in place that meet the legal requirements regarding collecting, verifying, and storing I-9 forms, and that the employees responsible for these functions are consistently following those procedures.
Additionally, employers should audit their existing I-9 forms to make certain that a properly completed I-9 form is on file for each current employee and for each former employee still within the retention period.
Employers should also consider whether to involve outside counsel in their I-9 audits. A number of factors may come into play in this determination, including risk tolerance, the size of the organization, and the familiarity of internal personnel with the technicalities of I-9 compliance. Some potential advantages of using outside counsel include having a fresh set of eyes review policies and documents and protecting the confidentiality of the internal audit process via the attorney-client privilege.
Of course, during an internal audit, an employer might discover that an I-9 form is incomplete or otherwise defective. Some examples of common errors or omissions are missing forms, the lack of a full name on a form, failure to provide a proper title for the document(s) used to establish proof of legal work status, using the wrong version of the I-9, failure to sign the attestation, and failure to provide the date of hire.
Employers that find these types of errors should not panic, as the government is likely to be more lenient when an employer takes proactive measures to correct I-9 errors and oversights. The key for an employer is to be transparent about any corrections it makes, and not to attempt to hide the fact that errors and oversights were made.
Practical tips for correcting I-9s include the following:
- Always cross out mistakes with a red pen, using a single line. Do not attempt to obscure errors by using a black marker or whiteout, or by disposing of incomplete or inaccurate forms.
- Always date and initial changes.
- Never backdate an I-9.
- Remember that only the employee can correct Section 1, and only the employer can correct Section 2.
- If there are multiple errors on a form, the corrections can be made on a new form, as long as the old form is preserved and kept with the new form.
- Include an audit note that explains and clarifies the "what, when and why" of the corrections.
What To Do When ICE Comes Knocking
To put it mildly, being audited by a government agency - particularly ICE - can be a stressful event for an employer. However, employers should be aware that though the government sometimes can demand immediate access to employment-related documents, ICE must give an employer three days' notice before conducting a Form I-9 audit. While an employer can waive this waiting period, we strongly recommend that the employer instead use the time to make sure that all of its paperwork and files are in order, in one place, and in a format that allows for easy review.
In addition, and as with any governmental audit, an employer should consult legal counsel as soon as possible to ensure that the employer understands its legal rights and responsibilities.
Given the current regulatory climate with regard to immigration issues, employers should prepare now for potential ICE audits.
As detailed above, an important step in this process is to conduct an I-9 self-audit and, based on the results of that self-audit, to correct any errors or omissions in current forms and train employees responsible for collecting and completing I-9 forms. An employer contemplating a self-audit should also consider involving legal counsel to assist with these issues and preserve the potential benefits of the attorney-client privilege.