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I-9 Enforcement
By Scott Buchanan
The Immigration Reform and Control Act of 1986 (IRCA) requires all employers to verify that new hires are legally authorized to work in the United States. The form that records this authorization is the I-9 Employment Verification Form. In July 2009, the US Immigration and Customs Enforcement (ICE) dramatically increased enforcement efforts and issued 652 Form I-9 audit notices to businesses. This was a greater number of audits than the total for the entire previous year. Additionally, ICE has hired hundreds of new investigators and in November 2009 issued an additional 1000 Notices of Inspection!
Some excerpts regarding increased I-9 Enforcement:
;"ICE is about to try a new approach; not just targeting the workers, but also the people who employ them in the first place. That's a challenge. There are millions of employers in the United States'" - John Morton, Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement (Director of ICE)
• "....individuals who have profited from hiring illegal aliens -- and often exploiting them -- we're going after their houses, their Mercedes and any money that they have, as well."
• "Worksite enforcement actions target a key component of the illicit support structure that enables illegal immigration to flourish. No employer, regardless of industry or location is immune from complying with the nation's laws. ICE and our law enforcement partners will continue to bring all of our authorities to bear in this fight using criminal charges, asset seizures, administrative arrests and deportations." - Julie Myers, prior Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement (Director of ICE)
The penalties can range from $100 to $1,100 for each paperwork violation. Below are several sample violations and their associated penalties:
Employee fails to check a box in I-9 Section 1 $1,100
Employee’s name is not printed in I-9 Section 1 $1,100
Form I-9 is not completed within 3 days of hire $1,100
Employer fails to sign Form I-9 $1,100
Employer fails to list the date of hire $ 110
Employer enters a P.O.Box instead of an address $ 110
Additionally, ICE is targeting not only businesses, but individual supervisors, managers and executives who are subject to fines and jail time as well.
So, how can these consequences be avoided? By immediately reviewing all existing I-9’s for compliance and adopting internal procedures to ensure future compliance for new hires and re-verification of those employees that only have temporary employment authorization. Establishment of procedures can assist in proving “good faith” should an audit occur.
It is important to note that it is illegal to discriminate against an individual because of that individual’s national origin or citizenship status. Also, refusing to hire an individual because the documents presented have a future expiration date may also constitute discrimination. An employer cannot specify which documents an employee must present because any unexpired document from the List of Acceptable Documents must be accepted.
The basics of completing the I-9 are:
- Ensure the employee fully completes Section 1 of the I-9 when he starts to work, making sure he prints clearly all sections followed with a signature and date.
- Review the documents establishing each employee’s identity and eligibility to work, either one item from List A or one item each from List B & List C.
- Properly complete Section 2 of the Form I-9, listing the documents reviewed and sign the Certification Statement.
- Keep the I-9 for 3 years after the date the person begins work or 1 year after termination, whichever is later.
Detailed assistance can be found in Form M-274 from the US Citizenship and Immigration Services (www.uscis.gov). Some common areas of concern follow.
- If the employee utilized a preparer or translator to complete the form, that person must certify that he/she assisted the employee by completing the Preparer and/or Translator Certification. The employee must still sign Section 1 personally.
- Ensure that the employee completed, signed and dated Section 1.
- If a document is presented that is for temporary work authorization, the I-9 must be re-certified before the authorization expiration date recorded in Section 1. Re-certification is done by completing Section 3 of the I-9.
- Check to see that the documents presented reasonably appear on their face to be genuine and relate to the person presenting them.
In a recent article published by the New York Times, the increased enforcement of documenting worker eligibility is being labeled a “silent raid” with businesses being held responsible and fined, replacing the physical raids of the past with illegal employees being deported. The article states that ICE “has conducted audits of employee files at more than 2,900 companies. The agency has levied a record $3 million in civil fines so far this year on businesses that hired unauthorized immigrants.” President Obama has promised tough enforcement against illegal immigration, in workplaces and at the border. A policy of requiring accurate documentation and proper completion of Form I-9 will prevent your company from being the next casualty.
Most human resource consultants can assist with the development of a policy as well as offer advice and consultation. Professional employer organizations (PEOs) represent another great solution, especially for those companies with little in-house HR expertise. PEOs offer a complete solution for payroll, unemployment and workers’ compensation coverage and claims management, accurate tax payments and timely payroll tax return filing, along with professional HR advice and services. Business owners are able to focus their time and attention on improving their actual business rather than being burdened with administrative issues related to their employees and payroll
About the Author
Scott is the president and CEO of Human Resources, Inc. (HRI), a professional employer organization (PEO) based in St. Petersburg and licensed in multiple states. HRI is one of only 30 PEOs in the nation and the only PEO in central Florida accredited by the Employer Services Assurance Corporation. Scott is active in industry affairs and is currently a member of the Government Affairs Committee of the National Association of PEOs (NAPEO) which takes him to our nation’s capitol and/or to Tallahassee several times each year. You can reach Scott at: sbuchanan@HRinc.com or www.HRinc.com
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