U.S. Immigration and Customs Enforcement (ICE) conducted more than 3,000 worksite audits in fiscal year 2012, letting employers know their intent by sending out Notices of Inspection. When ICE sends your company a Notice of Inspection, they are primarily coming to look at your I-9 files. Therefore, you should have your I-9 ducks in a row long before ICE ever comes to town because I-9 administration has a dark side. There are rules to follow and important personal identification documents to inspect, and the possibility of fines and jail time for not paying attention to the legal I-9 process should be considered.
Using the Wrong Version
Are you using the most current version of the I-9 employment eligibility verification form? The USCIS (U.S. Citizenship and Immigration Services) issued a new Form I-9 and M-274 “Handbook for Employers, Instructions for Completing the Form I-9” on March 8, 2013. If your company is not using this new form exclusively, you’ll be subject to penalties. If your company has old forms hanging around in files, inexperienced clerks who may be unaware they have older versions, or managers who aren’t focused on the I-9 process when hiring new employees, you’re at risk for violations. The current form is scheduled to be in use until March 31, 2016.
Opportunities to Discriminate
I-9 administration is full of opportunities for discrimination on the basis of citizenship and national origin. Asking for more documentation than the law requires, rejecting documents that appear to be genuine, refusing to hire or discharging a protected individual or giving preferential hiring because of national origin or citizenship could mean civil penalties of $110 to $1,100 per incident.
Legal I-9 administration depends on adherence to USCIS regulations for paperwork, recordkeeping, and employing authorized workers. The Immigration and Nationality Act provides for monetary and criminal penalties for violations per occurrence. If you are missing I-9 forms for employees, if you have unauthorized workers, or if your company demonstrates a pattern or practice of knowingly employing unauthorized workers, you could get the following:
- paperwork or recordkeeping violations: $110-$1,100 per occurrence
- knowingly employing an unauthorized worker: $375-$3,200 per occurrence for first violation; $3,200-$6,500 per occurrence for second violation; $4,300-$16,000 per occurrence for three or more violations
- demonstrating a “pattern or practice” of knowingly employing unauthorized workers: criminal fine of up to $3,000 and imprisonment of up to six months
- being debarred from federal contracts for a year
Enforcement of Form I-9 Employer Sanctions
The Department of Labor and Department of Homeland Security audit employers for I-9 compliance using Wage and Hour Compliance Program officers and Office of Federal Contract Compliance Programs’ equal opportunities specialists. ICE carries out final enforcement.
Current I-9 enforcement strategies focus on combined civil and criminal prosecutions of egregious violators rather than unauthorized-worker arrests at worksites. I-9 enforcement is directed at employers who knowingly or recklessly hire unauthorized workers and/or rely on unauthorized workers as a business model. The government’s goal is to find employers that mistreat their workers, engage in human smuggling or trafficking, participate in identity and benefit fraud, money laundering, or other criminal conduct. Employers involved in national security, public safety, and critical infrastructure and key resources sectors such as construction, food processing, and agricultural production that have traditionally been associated with the employment of illegal aliens are frequently targeted.
To avoid financial and criminal liability from an ICE inspection, employers should develop a compliant I-9 verification and administration process, as well as ensure that their contractors comply with I-9 obligations for contracted employees they are affiliated with. Employers can avoid I-9 violations by ensuring I-9 procedures are administered uniformly, conducting self-audits, using written procedures to provide clear guidance to human resources and hiring managers, and training those who are responsible for conducting I-9 verifications.
A well detailed I-9 process can be enhanced through HR or payroll software that tracks the I-9 process and assists in recordkeeping. It also keeps I-9’s protected and yet readily available in case of an audit. Contact us now to learn how our advanced payroll software can take the worry out of the I-9 process.