** LEGAL UPDATE **
If employers don't have their I-9 houses in order, now is the time to get them fixed. Immigration and Customs Enforcement (ICE), which is the enforcement arm of the Department of Homeland Security, has come knocking with a vengeance. The agency reported on May 14, 2018 that it already has doubled the number of enforcement actions over the prior fiscal year. And there still are four more months until this year's federal fiscal year ends, on September 30.
ICE regularly publishes examples of enforcement actions on its website.
The enforcement actions fall into four categories:
The first two typically are paperwork reviews and possible imposition of monetary fines for missing or inaccurate recordkeeping. ICE tends to pursue the latter two when going after employers that intentionally violate the law or have engaged in a "pattern or practice" of noncompliance.
According to its press release, ICE is seeking to "ensure U.S. businesses maintain a culture of compliance" through aggressive enforcement of the employment authorization verification requirements of the Immigration Reform and Control Act of 1986 (IRCA). IRCA requires employers to review new employees' identification and work authorization documents to make sure they are legally allowed to work in this country.
The so-called I-9 process, which is based upon the form employees and employers must fill out as part of the hiring process, often involves walking a fine line between work authorization verification and illegal discrimination. If the employer unknowingly accepts fraudulent documents or documents not listed on the I-9, it can face monetary fines. If it asks for specific documents or more or different documents from an employee, it could face penalties, as well as a private lawsuit, for national-origin-based discrimination.
Although the current administration's leadership is wrought with inconsistency, it's clear that ICE means business and is on the warpath, going after employers. While criminal enforcement actions routinely and necessarily involve an element of surprise, other enforcement actions normally start with a three-day notice of intent to audit the employer's records. If an employer participates in the E-Verify program, ICE can show up at any time and conduct the audit right away.
What to do? Conducting a self-audit of I-9 forms for all employees is a great starting point.
Make sure your business records include an I-9 on file for all current employees, and keep those I-9s until the later of three years from the date of hire or one year from termination.
Also make sure the I-9s are completed completely and correctly. If any corrections are needed, make the correction, initial and date the form where updated, and attach a short memo to the file explaining the what/who/why/when for the correction.
Finally, if you don't have an I-9 protocol in place, develop one now and follow it consistently. If you have questions or want greater assurance for your current practices, or if you've never heard of an I-9, seek legal counsel before ICE comes knocking.
Effective Date: May 14, 2018