By: Josune Aguirre
The ICE Deputy Director, Thomas Homan, has said he wants to ramp up work site enforcement by 400% and California, a “sanctuary” state, has seen the effects. As we recently blogged, ICE served notices to 122 southern California companies. As a result, companies are conducting internal I-9 audits to ensure they have their ducks in a row.
We recently completed several internal I-9 audits for corporate clients and wanted to share some practical tips on how to avoid common mistakes to ensure compliance with immigration rules. Noncompliant I-9 forms may lead to civil and, in some cases, even criminal penalties. As such, a practice of noncompliance can become extremely expensive, especially in the current age of increasing compliance and enforcement efforts.
- Wrong Form Edition: As of September 18, 2017, all I-9s must be completed on the edition date of 07/17/17. Therefore, Form I-9 with the edition date of 11/14/16 is no longer accepted. This can be difficult as the only difference on the face of pages 1 to 2 is the edition date located on the bottom left hand corner. Because they are so similar, employers did not notice when page one (employee’s portion) was completed with the correct form edition while page two (employer’s portion) was completed with the 11/14/16 edition, a noncompliant form.
- The Solution: Always print out from the website to ensure you are using the most updated form. It is critical to keep up to date with the current Form I-9 edition because although the form seems deceptively simple, failure to use the correct form results in a noncompliant form. You can correct the error by redoing the I-9 on the correct form edition writing “I-9 redone after internal audit” on the righthand corner.
- Over Documentation: This is a non-correctable mistake but can lead to issues both from ICE but also anti-discrimination actions. Pursuant to federal law, an employer should only accept either a List A document or a combination of List B and List C documents, but not both. A company will often try to show compliance by collecting documents from List A, List B AND List C but this results in many over-documented I-9 forms and can run the risk of exhibiting a pattern or practice of discrimination which could result in civil penalties.
- The Solution: Ensure personnel are well trained and consider using the fillable Form I-9 PDF which prevents the occurrence of over documentation as it will only accept a List A document or a List B and C document. Further, if you find I-9s with overdocumentation, the Immigrant and Employee Rights Section (IER) (previously OSC) recommend employers to evaluate those I-9 forms to determine if there was a pattern of non-compliant practice. If there is, remediate non-compliance I-9 forms, create a companywide non-discrimination policy and provide refresher training for all hiring professionals on I-9 processes. A memo to file explaining these actions in response to these findings could help show due diligence and compliance if you are subjected to an audit in the future. However, we highly suggest discussing the matter with an experienced immigration attorney.
- Inconsistent Record Keeping: We found that many companies are inconsistent with their I-9 maintenance. Some departments would keep copies of documents presented in support of the employee’s work authorization while others only maintain the actual I-9. This is problematic as the practice can be seen as discrimination and if audited, this form of discrimination could also lead to civil and criminal penalties.
- The Solution: Have a companywide policy to either copy the supporting documents or not, but make sure there is consistency across the board. However, as a practice pointer, copies are evidence of good faith as a copy usually evidences that the document on its face, reasonably appeared genuine.
- Alterations: Forms with white outs, scratch outs, and black outs are all too common. However, concealment of a correction can lead to increased liability under federal law.
- The Solution: Draw a line through the incorrect information, enter the correct information, and initial and date the correction. If there are many mistakes, redo the section on the current Form I-9 edition, attach it to the original Form I-9 and write the reason for the correction on the righthand corner.
- Reverification: Employers must reverify employees on or before employment authorization expires. However, U.S. citizens and permanent residents are not subject to reverification (except permanent residents who submitted temporary I-551 stamps). The reverification must be done on the current Form I-9 edition at the time of the reverification. We noticed that employers either did not reverify, reverified after the employment authorization expired, or on the wrong form edition which all result in a noncompliant I-9.
- The Solution: Calendar, calendar, calendar! Also, ensure there is a system in place to share the expiration dates to safeguard any personnel in charge of I-9 compliance. If you find out that an employee has not been reverified and should have been, we suggest a reverification be done which includes a note stating that the I-9 was reverified after an internal audit on the righthand corner.
In sum, an employer cannot fix all errors but if the employer shows good faith – it can mitigate penalties as ICE looks at good faith as a mitigating or enhancing factor when issuing the recommended fine contained in the Notice of Intent to Fine. If you have any questions or would like to set up a consultation to discuss the possibility of an internal audit, please contact us.