INCREASE IN FORM I-9 (EMPLOYMENT AUTHORIZATION) AUDITS PROGRAM
February 18, 2019
Over the past year, the U.S. Citizenship and Immigration’s (ICE) Homeland Security Investigations (HSI) division has worked to expand its Form I-9 audits program. As this initiative is continuing, we wish to remind our clients of the importance of Form I-9 compliance.
Businesses are responsible for filling out a Form I-9 and collecting supporting documents for each individual they hire to prove all such employees are legally authorized to work in the U.S. Employers must be careful to accept the proper documents, as listed on the last page of the Form I-9, depending on the status of each individual, and documents must not be expired. For example, an alien with work authorization might provide as proof of status a foreign passport along with a separate Employment Authorization Document containing a photograph (I-766), or a foreign passport with an I-551 stamp or I-551 notation on a machine-readable immigrant visa, or a foreign passport along with a complete and endorsed Form I-94. Completed I-9 Forms are not filed with the government, but must be retained for a specified period in case of an audit. This is just one of several technical requirements imposed by the law.
An audit entails on-site inspection of records by ICE/HSI agents to ensure proper recordkeeping and to verify that a business is employing only legal workers. Upon discovery of improper completion, processing or even retention of I-9 Forms, ICE/HSI may impose civil penalties for minor technical errors discovered in an employer’s records ($220 to $2,200 per violation), but may seek criminal charges (and significantly higher financial penalties) for employers who substantively fail to maintain proper documentation. The trend of audits is only expected to grow because ICE/HSI views them as a tool to dis-incentivize illegal hiring and build a culture of labor law compliance. In fiscal year 2017 alone, American businesses were levied $97.6 million in forfeitures, fines, and restitution, and another $7.8 million in civil fines.
The seriousness of the government’s push for more audits was illustrated this past summer when the U.S. Department of Justice filed suit against California to enjoin legislation that effectively sought to interfere with ICE employer audits. As enhanced scrutiny continues, employers should be prepared for audits, and be vigilant to avoid common pitfalls in Form I-9 preparation such as leaving certain fields of the form blank, not providing a hire date, not filling out forms promptly upon hiring an employee, or accepting documentation that is not valid.
If you are concerned about your current method and manner of handling I-9 Forms, Eckert Seamans can assist, and if you are contacted by ICE/HSI, you should contact us immediately.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Alexander Matthews(amatthews@eckertseamans.com or 202-659-6633).
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