Employers: How to Prepare Yourself for an I-9 Audit

Our August 2018 newsletter contained the following news flash: ICE Dramatically Increases The Number of I-9 Audits.

During this fiscal year, ICE has served more than 5,000 Notices of I-9 Inspections on employers across the country. They have also made almost 1,000 administrative worksite-related arrests. Fines for I-9 paperwork violations range from $200+ to $2,200+ per employee for paperwork violations to $500+ to $22,000+ for knowing violations.

In 2015, an company was fined in excess of $600,000 for paperwork violations. In 2017, a company was forced to pay $95,000,000 in forfeitures and fines related to I-9 practices and employing unauthorized workers.

Client Reviews

Obviously, employers can not simply assume that they are in compliance with federal immigration laws. We recommend that they take the following steps:

Conduct Periodic Internal Self-Audits

Since I-9s became required for new hires in 1986, we have always advised employers to conduct internal self-audits as a way to eliminate, or at least minimize, their liability for I-9 violations.

Employers need to make sure that employees complete Section 1 of form I-9 no later than their 1st day of employment. They are required to print their name, address, e-mail address and phone number.

They must attest whether they are either a (1) US citizen; (2) a non-citizen national; (3) a lawful permanent resident; or (4) are authorized to work in the US until a particular date. A lawful permanent resident must provide his/her alien number. A person with a temporary work permit must choose between completing information from 1 of 3 documents.

The employer must then sign and date the I-9 attesting, under penalty of perjury, that the information is true and correct.

Within 3 days after the employee’s first day of employment, the employer (or their authorized representative) is required to complete Section 2 of form I-9. The employee is required to present either a List A document showing identity and employment authorization or a List B identity document and a List C employment authorization document.

The employer (or their authorized representative) is then required to complete certain information related to each document, sign and date Section 2 and “attest, under penalty of perjury, that (1) I have examined the document(s) presented by the above-named employee, (2) the above-listed document(s) appear to be genuine and to relate to the employee named, and (3) to the best of my knowledge the employee is authorized to work in the United States.”

Section 3 needs to be completed only for Reverification and Rehires. This is mandatory when an employee’s work permit is extended.

The final page of form I-9 lists the permissible List A, B and C documents that an employee may present to the employee. Employer should never specify which documents must be submitted by an employee. The employee must choose between submitting a List A document or a List B and a List C document.

Helpful I-9 Resources for Employers

Over the past 30+ years, walking the fine line between I-9 compliance and refraining from violating federal anti-discrimination laws has become increasingly difficult for employers. Fortunately, the USCIS now provides the following online resources to help employers comply with the complex rules governing these subjects:

• • How to Avoid Common I-9 Mistakes

The USCIS website contains a page on I-9s entitled Common Mistakes and How to Avoid Them. Also, when our law firm has conducted audits of I-9 forms for employers, I have often observed that far too many of the employees submit Drivers Licenses and Social Security Cards. Often, this results from HR telling the employees which forms to submit. Instead, HR should simply show each employee the list of List A, B and C documents and inform them that they need to submit a List A document, or a List B and a List C document. Be aware that employees cannot be compelled to list their Social Security numbers on form I-9 unless the employer is enrolled in the E-Verify program. If an employee is a lawful permanent resident, their employer should never reverify their I-9 form simply because their green card expires. Finally, there are numerous types of EAD work permits that automatically are extended for 180 days if the employee submits a timely application for extension.

• • USCIS’s Handbook for Employers

I have watched the USCIS Handbook for Employers going online and growing dramatically in size. These days, it is a must-have resource for employers in order to comply with I-9 and anti-discrimination laws. It contains sections on each of the following topics: (1) Why Employers Must Verify Employment Authorization and Identity of New Employees; (2) Who Must Complete Form I-9; (3) Completing Section 1 of Form I-9; (4) Completing Section 2 of Form I-9; (5) Completing Section 3 of Form I-9; (6) Guidance for Minors and Employees with Disabilities; (7) Evidence of Status for Certain Categories; (8) Leaves of Absence, Layoffs, Corporate Mergers and Other Interruptions of Employment; (9) Correcting Form I-9; (10) Photocopying and Retaining Form I-9; (11) Unlawful Discrimination and Penalties for Prohibited Practices; (12) Instructions for Recruiters and Referrers for a Fee; (13) Acceptable Documents for Verifying Employment Authorization and Identity; and (14) Some Questions You May Have About Form I-9.

• • USCIS’s I-9 Central

A number of years ago, USCIS added I-9 Central to their website. This is an indispensable online resource for employers. I-9 Central contains the following sections: (1) What’s New; (2) About Form I-9; (3) Complete and Correct Form I-9; (4) Acceptable Documents; (5) Retain and Store Form I-9; (6) Employee Rights and Resources; (7) Penalties; (8) Contact Us; (9) Form I-9 Desktop Widget; (10) Learning Resources; (11) I-9 Central Questions and Answers; and (12) E-Verify.