Sally Baraka is senior vice president and general counsel at Paycor. The views expressed here are the author's own.
An increase in Form I-9 audits has put the issue at the forefront of U.S. employers' hiring compliance concerns for 2019.
U.S. Immigration and Customs Enforcement (ICE) appears fully committed to ensuring that employers comply with I-9 employment eligibility verification requirements, which prove employees are legally allowed to work in the country. Violations can result in severe penalties for the employer and, in the case of undocumented workers, arrest or deportation of the employee.
ICE inspections and audits have skyrocketed during the past two years, resulting in an unprecedented number of fines and arrests. Fines can range from $110 to $1,100 for errors such as not completing a form, but they increase dramatically for knowingly or continuing to employ unauthorized workers — up to $14,050 for each violation.
From Oct. 1, 2017, through July 20, 2018, ICE and its Homeland Security Investigations arm conducted 6,093 investigations and made 675 criminal and 984 administrative worksite-related arrests. In fiscal year 2017, companies were ordered to pay a total of $97.6 million in judicial forfeitures, fines and restitutions in addition to nearly $8 million in civil fines. The largest penalty fell on one of the largest privately-held companies in the country, Asplundh Tree Experts, Co., headquartered in Willow Grove, Pennsylvania. The company pled guilty to hiring and rehiring employees it knew weren't eligible to work in the U.S. and was sentenced to pay $95 million.
ICE's intensified focus on enforcement is an attempt to create a culture of compliance among employers and deter illegal employment. Anyone involved in hiring new employees should be prepared for an audit.
In fact, you may want to conduct an internal I-9 audit to make sure everything is in line before ICE comes knocking. Doing so can ensure you'll be able to produce the documents ICE requests within the required timeframe; if you receive a Notice of Inspection (NOI) from ICE, you'll be required to produce all I-9 forms and supporting documentation within three days.
Notably, an audit is different from an ICE raid, in which agents show up at your business unannounced with a criminal search warrant. Either way, it's important to be proactive and have documentation on employees.
Maintaining I-9 compliance
As a first step, designate a member of your HR team as the point person to become an expert on the employee eligibility verification process. This includes creating a process for accurate completion of the I-9 form and responsibility for maintaining it. If you're a one-person shop, schedule time on a regular basis to educate yourself on proper procedure and to make sure paperwork is completed accurately.
It's also important to train any employee who might handle I-9 forms on how they need to be completed and on anti-discrimination practices. HR professionals can look to the U.S. Citizenship and Immigration Services' employer handbook for assistance.
Develop a system to track the immigration status of employees and to make certain re-verification is done on time. You can do this manually, but it takes time and is labor intensive. If an employee fails to submit completed paperwork accurately or on time, it can mean your company is non-compliant. Instead, an automated system can allow you to enter I-9 information and provide employment authorization confirmation while also alerting you to any potential shortcomings.
For a business with remote employees, it's important to remember that work authorization documents must be reviewed in person. A scan or photocopy that's emailed won't work. You need to make sure any new hires who telecommute are aware of this policy and both of you are prepared to complete the I-9 process properly.
It's also crucial that you or your point person knows how to correct errors or omissions and what to do with incomplete or outdated I-9s.
Be ready for an audit at any time. If you receive a NOI, you'll have only three days to produce the necessary paperwork. It's much easier to stay ahead of the game by verifying compliance with every new hire and re-verifying as required than it would be to try and play catch-up during those three days. You don't want to put your company at risk for any penalties, fines or physical removal of employees.
Employers are under scrutiny to ensure employees are working legally and that company practices are compliant. Failure to do so can threaten the growth of a business and sometimes its very existence. As an HR professional or business owner in 2019, it's critical to keep a close eye on the status of your employees' authorization to work in the U.S.