While immigration enforcement and oversight have occurred under the purview of all past presidents, the Trump Administration has publicly made them a leading policy priority. Immigration raids and detentions at the border are the most visible aspects of this policy, but administrative oversight of employment documentation has also increased and will likely have the greatest impact on the majority of employers. One area where this is especially true is with Department of Homeland Security (DHS)’s oversight of employer’s I-9 forms.
Worksite immigration enforcement rose drastically in the fiscal year 2018 compared to the previous year, following a commitment made by U.S. Immigration and Customs Enforcement (ICE) in late 2017 to step up its worksite enforcement efforts across the country.
All worksite enforcement categories surged by 300 to 750% over the previous fiscal year. Here are some surprising numbers:
• 6,848 worksite investigations in 2018 compared to 1,691 in 2017;
• 5,981 I-9 audits in 2018 compared to 1,360 in 2017;
• 779 criminal arrests compared to 139 in 2017 (including arrests and indictments of managers); and
• 1,525 administrative worksite-related arrests compared to 172 in 2017.
What is an I-9 Form?
The I-9 Form is an instrumental part of the new employee on-boarding process, and should be completed within the first 3 days of hire. This form is used to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including both citizens and non-citizens. Failure to maintain proper I-9s can lead to a variety of monetary fines or even criminal penalties if an employer intentionally misrepresents I-9 information.
What Can Go Wrong? During an Audit
On its face, the I-9 form appears to be a fairly simple and straightforward document. However, many employers fail to accurately input all required documentation, fail to obtain proper employee documentation, or fail to properly store and maintain I-9 records. Any of these oversights can lead to potentially costly fines in the event of an audit. Our clients who have been officially audited told us that ICE reviewed every line of an I-9 form for accuracy and will issue fines for every entry that is inaccurate. Therefore, it is vital that employees responsible for handling I-9 documentation be fully trained with respect to I-9 procedures. For a detailed overview of the I-9 process, see our previous article, 6 Tips for Avoiding Costly I-9 Mistakes.
Who Can Expect an Audit?
Any business in the United States with employees is technically a potential target of an audit. However, given the limited resources of DHS, employers in industries that are known to employ foreign workers are likely to be the main targets. This can include employers in industries such as landscaping, hospitality, and agriculture, to name a few. Additionally, employers in these industries who have larger workforces will likely be greater targets of audits.
What Happens During an I-9 Audit and What Should the Employer Do Before and During the Audit?
Most I-9 audits are conducted by ICE and are generally unannounced. An agent from ICE, often in plain clothes, will show up at an employer’s place of business and announce they are there to conduct an audit of the employer’s I-9 documentation. The agent will then issue a Notice of Inspection (NOI), which is the official notice that the employer is being audited and must respond accordingly.
Our clients have provided us with their experiences when dealing with ICE audit visits. In most cases, the officers will show up and clearly state who they are and why they are there. While different officers will approach an audit based on their own methods, our clients have generally found officers to be professional and clear in what they are seeking. It is extremely important to take any visit by ICE seriously and to follow the officer’s instructions. That being said, employers should not be afraid to ask for identification and all relevant documentation. The officer should go through the NOI point-by-point with the employer, and the employer should ask for clarification if something does not make sense. Again, an employer can be fined for each entry in an I-9 that is not filled out correctly, so it is important to make sure that documentation in response to an audit is presented accurately.
What Happens Next?
Once a NOI has been issued, the employer is given three days to provide the requested information. In some cases an extension can be granted, but employers should prepare in advance as if they only have a short time to respond. This means ensuring all I-9 documentation is accurate and up-to-date in advance through self-audits or through the services of a qualified attorney.
After three days, the ICE officer will return to the employer’s place of business and request all documentation listed in the NOI. Not providing this documentation will likely result in an immediate penalty. The employer should provide the documentation in an organized manner to prevent any delays in processing. The employer should not provide any documentation not specifically listed in the NOI. If an employee volunteers provide documentation to a government agent that the agent does not have prior authority to collect, it may cause the employer to be in violation of both state and federal privacy and employment laws.
Once the documentation has been turned over, the officer will provide the employer with information on how ICE will proceed with an audit. The requested documentation will be reviewed for accuracy and matched against government databases. Any inaccuracies or omissions will be noted and fines issued. Once the audit is complete, the employer will be issued a final report that will list any problems with the documentation, corresponding penalties, and any remedial action the employer must take. In cases where ICE suspects intentional criminal acts, the case will likely be escalated to the Department of Justice.
Our clients have reported that audits of I-9 documentation have recently been taking upwards of a year to process. This means that an employer will likely have a significant wait time to find out if it is subject to penalties. Proper preparation will not only allow the employer to avoid costly fines, but it will also give the employer peace of mind during potentially long audit wait times.
How to Prepare for an Audit
The first step in preparing for a potential audit of I-9 documentation is to ensure that all I-9s are completed accurately and all required evidence is collected. When hiring a new employee, an employer must complete an I-9 and collect specific documentation from the new employee demonstrating a legal right to work in the United States (and this should be outlined in the Offer Letter to the employee). There are a variety of documents that can be used to meet this burden, such as a United States passport or an Employment Authorization Document issued by DHS. It is important for the employer to keep copies of these documents with the corresponding I-9 form, as an auditor will want to see both.
Another way to prepare for an audit is to perform self-audits of all I-9 documentation. This will entail internal review of all existing I-9 documentation to make sure everything is completed correctly, all supporting documentation is included, and all documentation is organized correctly. Additionally, for employers that employ Permanent Residents with Green Cards and foreign workers on work-related visas, it is important to monitor when Green Cards or employment status are set to expire. An expired Green Card or Employment Authorization Document will mean that an employee is not permitted to work, and must either provide updated work authorization, or be terminated from employment if the employee is unable to produce valid work authorization after a specific period of time.
When reviewing documents verifying the employee’s right to work, the employer should physically examine the document. If the document reasonably appears, on its face, to be genuine and related to the employee, the employer must accept the document. Only if the document does not appear genuine on its face can an employer reject the document. Rejecting a document without a specific basis for doing so may be a violation of a variety of immigration-related employment practices.
If, during a self-audit, an employer discovers that an employee’s work authorization or Green Card is expired, or that documentation of work authorization is missing or inconsistent, the employer is required to inform the employee of the issue and give the employee reasonable time to remedy the issue. An employer cannot simply terminate an employee upon discovery of an expired or missing document. If, after a reasonable time, the employee is unable to remedy the issue, the employer may terminate the employee. In such cases, the employer should fully document the situation and be prepared to include this documentation in ICE audit materials if necessary.
Given the complex nature of the I-9 process and the fact that even small mistakes can lead to financial penalties, an employer should consider retaining qualified legal counsel to assist with self-audits. The Grady Firm regularly assists employers with self-audits of I-9 documentation, trains employees with I-9 preparation, and provides counsel and guidance during ICE I-9 audits.
About The Grady Firm. P.C.
The Grady Firm, P.C. attorneys provide our clients with the tools to arm themselves and minimize risk with I-9 audits, custom Employee Handbooks; personnel file forms and audits; on-demand employer counseling; and sexual harassment and leadership training in English and Spanish. By combining years of experience as legal counsel for both U.S. and international companies, The Grady Firm acts as the outsourced Global Mobility Department for multi-national corporations seeking to move personnel across borders with visas and Green Cards based on employment, investment, and family relations.
Click here to schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (323) 450-9010; or fill out a Contact Request Form.
*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.