I-9 Compliance Tips
On April 20, 2006 The Department of Homeland Security
announced its Comprehensive Immigration Enforcement Strategy for the Nation’s
Interior. The second goal of this initiative is to build strong work-site enforcement and
compliance programs to deter illegal employment in the United States.
Immigration and Customs Enforcement (ICE) has undergone a
strategic shift from imposing administrative sanctions and fines to seeking out and
punishing knowing and reckless employers of illegal aliens by bringing criminal charges
against the employers and the administrators completing employment eligibility forms.
In the past employers had little fear of being arrested and
the administrative fines were nominal and considered a cost of doing business. In 2003
there were only 124 fines issued. Last year, in a single ICE worksite enforcement
investigation, a settlement and forfeiture of $15 million was negotiated.
Just last week an investigation which began over a year ago
resulted in the arrest of 1,187 people on administrative immigration charges, and seven
criminal complaints were brought against managers or former managers for alleged criminal
violations in connection with the hiring of illegal, undocumented aliens. The charges in
the criminal complaints allege harboring aliens for illegal advantage, and, in two
instances, document fraud. The Administration’s Fiscal Year 2007 budget requests an
additional 171 agents and $41.7 million in new funds to enhance worksite enforcement
efforts.
You may ask yourself, what does that have to do with my
business? I don’t hire illegal aliens.
Most employers do not knowingly hire illegal aliens and
will be in compliance with the Immigration Reform and Control Act of 1986 (IRCA) and
don’t need to worry about criminal charges like money laundering or harboring an
alien for illegal advantage. However, if you are in the hospitality, construction,
landscaping or agriculture business you may be targeted for a worksite enforcement
inspection.
Charges of recklessness have been brought for employers who
are careless or lax in their employment practices. Missing or incomplete I-9 forms can
result in fines between $600 and $800 per form and missing forms can result in an
additional fine of about $1500 per form (can be as high as $10,000) for knowingly
employing an ineligible person. (ICE assumes that persons without forms are illegal.)
All employers should perform regular audits of their I-9
forms and regularly review the practices of those responsible for hiring and completing
paperwork for new employees. Employers are not expected to be document experts, but an
individual presenting a social security card with the number 000-00-0000 should be
suspect.
As an employer, you may not use photocopies of identity or
employment eligibility documents, with the exception of a certified photocopy of a birth
certificate. You can make a copy of the documentation provided and retain with the
completed I-9. This can be helpful later as you complete your audit, in the event you
completed information incorrectly on the I-9. Be aware, if you retain copies for one
individual, you must do it for all employees.
You are not permitted to tell an employee which documents
to provide for employment eligibility verification. A good practice is to include a copy
of the “List of Acceptable Documents” with your offer letter. Instruct the
employee that they must provide either one document from List A or one document from List
B PLUS one document from List C on the first day of employment.
An employee must prove eligibility for work within three
business days of hire or risk termination. If an employee has lost one of their documents,
you can accept a receipt for a replacement document, (lost, stolen or destroyed), within
the first three business days. An employee then has up to 90 days from the first date of
employment to produce the actual documents. Set up a tickler file for 30, 60 and 90 day
follow-ups with the employee.
Make sure that you have completed the Employer Review and
Verification section of the I-9 form within three days of the first day of employment.
Your signature and date must be within three days of the employees start date or you could
be subject to an administrative fine. Fines vary from $100 to $1,100 per paperwork
violation. It is best if you complete all hiring paperwork on the same day as the
employee. It will save time, money and questions later.
After completing I-9 forms you must store them in a
location which will allow you to produce them within three days of an official request for
production of the documents for inspection. If you have a significant number of employees
or multiple sites you may want to consider storing I-9s in a central location
alphabetically.
You are not required to do this and you may, if you choose
to, store them in the employee’s personnel file. This makes it more difficult to
conduct an internal self-audit of I-9s or pull documents quickly, but is permissible.
I-9s must be retained for at least three years from the
date of hire or one year after termination, whichever is later. You may discard outdated
I-9 forms. If there is a question, refer to an expert such as an employment law or
Immigration attorney. If you re-hire an employee within three years of the date the form
was first completed, you can complete Block B and the signature block on Section 3 of the
original form.
If you have decided to conduct an audit of your
company’s I-9 forms here are a few suggestions:
1. Generate a list of all employees hired since November 6,
1986.
The list should contain the employees name, social security
number, date of hire, and termination date. Identify the former employees whose
termination date is outside the required retention period. Those I-9 forms can be
discarded. Have a separate person check your math before discarding any I-9s.
2. Verify that you have an I-9 for every person on your
list.
3. On each I-9 check for missing signatures, unchecked
status boxes, information recorded in the wrong space, missing or incorrect dates.
4. Make the necessary corrections or require the employee
to produce the missing information.
Conducting an audit of your I-9 files and making required
corrections will go along way towards demonstrating good faith compliance with the IRCA
and may reduce the risk of severe penalties. |
