I-9 Audits: 6 Things You Need To Know

Just like the Department of Labor, ICE (Immigration and Customs Enforcement) has stepped up its enforcement efforts. According to attorney Sarah Hawk, of Fisher & Phillips, LLP,  the last two years have seen big increases in the number of I-9 audits that ICE is conducted. The fines have been increased, the forms have been changed, and the penalties have gotten stiffer. Sarah conducted a webinar that I attended and there were a number of things presented that made me pay attention. I am not going to recreate her webinar (copyright violation is a bad thing to do, especially with an attorney) but I am going to point out some of the things you may not be aware of since I wasn’t.

  1. The Social Security Administration is no longer sending out “no-match” letters. So just because you have not gotten any lately doesn’t mean you are in the clear. ICE is expecting you to use the E-Verify system to make the determination that SSNs are correct.
  2. You can be fined for OVER DOCUMENTATION. If you ask for more documentation than is required you can be fined and face charges of possible discrimination.
  3. We have all heard of the three-day window on I-9 completion. In reality Section 1, the employee section must be completed on the FIRST DAY of employment. Section 2, the employer section, where presented documents are recorded must be done by the THIRD DAY. You MUST have a good tickler system.
  4. It is critically important that you PURGE THESE FORMS ON A TIMELY BASIS. Forms on terminated employees have to be kept for at least three years after the date of hire or for one year after termination, whichever is the longer period. Then you should shred the document. If you retain these documents and ICE performs an audit you can be held liable for all mistakes and omissions found on those forms, even though the person is no longer employed by you. This could be a costly mistake.
  5. If you have forms that are incorrect, DO NOT CREATE A NEW FORM! Use the old form and make your corrections. Note on the form, and at each correction, that this is done “Per Self Audit”.
  6. EVERYONE is covered. Even if you are a company of 1 person and you are on the payroll you must have an I-9.

These are just some of the things you need to know. The complete handbook on I-9 Instructions can be found by clicking on the link. It will serve you well to read and understand this handbook. And then I would suggest you perform a self-audit. Even companies of fewer than 50 employees can still see fines of up to more that $100,000. Large companies can be fined well over $1,000,000. If you are the HR person responsible for this if is unlikely you will be employed long.
If you are a Federal Contractor you have an extra burden and it is critical that you conform to their rules. ICE has a tip sheet on their IMAGE program. (ICE Mutual Agreement between Government and Employers) (Only the government would use an acronym that has an embedded acronym!) That tip sheet can be found at IMAGE Best Employment Practices.

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