Immigration and Customs Enforcement (ICE) has increased the number of I-9 audits that it has conducted to around four times as many I-9 inspections (Notices of Inspection) in the first seven months of 2018 as it did in the prior fiscal year. ICE conducted 5,278 Notices of Inspection since January 2018. The reason that the government has increased the number of inspections is clear. They fit with Trump’s agenda to strictly enforce immigration laws.
Unfortunately, many businesses do not regularly audit their I-9’s and those that do often make errors that cannot be corrected. In today’s climate, no business can afford to be unprepared for an I-9 inspection. Luckily, there are a few simple steps that employers can take to help prepare for these unanticipated inspections which frequently occur because an employee or someone else tipped off ICE.
When to Review I-9’s
Before an I-9 audit occurs, you have the opportunity to review and correct your I-9’s. ICE considers self I-9 audits that occur before a Notice of Inspection more favorably than an audit that occurs after ICE has already served a Notice of Inspection. However, if ICE has already served a Notice of Inspection, then it is often a good idea to make changes. Fines from a Notice of Inspection can be substantial.
Can You Prevent a Problem?
Employers make a number of simple, but critical mistakes when filling out I-9’s. One of the biggest failings of companies is a lack of training. It should go without saying that whoever is filling out the I-9 needs to know how to complete the I-9 to do a good job. Some simple training can help these employees and minimize costly mistakes.
Here are some of the most common mistakes on the I-9:
- Forgetting to re-verify the work authorization of employees with an Employment Authorization Document (EAD card).
- Reverifying US citizens or permanent residents.
- Not completing the I-9 in a timely manner. Section 1 must be signed by the first day that the employee begins work. Section 2 must be completed by the employer no later than 3 business days after the employee begins work. If the employee began work on a Monday, then Section 2 must be completed by that Thursday.
- Leaving entire sections blank. Re-check the document while the employee is still there or after you complete it. Take a pencil or pen and touch each box to make sure that something is in each box where information is required (in Section 1 “N/A” should appear in any box that does not apply to the employee).
- Keeping I-9’s that could be destroyed. I-9’s are kept for 3 years past the date of hire or 1 year after the end of employment, whichever is later. Always keep I-9’s for current employees.
What’s the Worst that Can Happen?
What if the audit reveals that half of your workforce is not authorized to work? What would you do? Would you be able to continue operating or would you have to shut down? How much would it cost to replace half of your workforce? Could you even operate without half of your workers? This is exactly what happened to St. Agnes Bakery when it was determined that half of its workers were not authorized to work after an inspection in January.The facility remains closed more than 6 months later.
Employers will also be fined for violations. The inspector’s job is to see if you are not following the proper I-9 procedure and to fine you or take other corrective action against you.
Prevention is key. Make sure that you regularly audit your I-9’s and correct any errors. An audit can save you a lot of time and prevent potential problems. While I-9’s may seem like just another paper that employees need to fill out when they begin working, there are serious consequences when employers fail to follow the law.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else