June 11, 2019

By: Michael Schewe, Senior Counsel, Peckar & Abramson, P.C.

The Trump administration continues to make immigration compliance a top priority. We are amidst an historic surge in worksite enforcement investigations. Certain industries, including construction, are a big target for U.S. Immigration and Customs Enforcement (“ICE”). This article discusses the trend of increased enforcement and best practices that employers can use to mitigate risk.

The Form I-9 is a small form that can easily become an afterthought, but this short form carries with it a host of problems for employers. The Form I-9, entitled “Employment Eligibility Verification,” came from a Reagan-era law deemed the Immigration Reform and Control Act of 1986 (“IRCA”). The goal of IRCA was to “remove the magnet” of illegal immigration by making it difficult for undocumented individuals to obtain lawful employment. The theory is that, if the “magnet” of legal employment is removed, then individuals would be less inclined to enter the U.S. illegally. We’re not here to discuss the pros and cons of that strategy, but I think a bit of history is important to understand why employers are tasked with this responsibility and why this area of compliance falls under the purview of attorneys versed in immigration law.

IRCA requires that employers confirm their employees are legally authorized to work in the United States. To accomplish this, employers are required to fill out a Form I-9 for each employee hired, and to reverify employment eligibility if and when that authorization to work expires. IRCA also requires an employer to keep certain documentary records on hand in the event ICE initiates an audit to confirm that you, the employer, are complying with the law and corresponding regulations. IRCA also contains several non-discrimination protections that are seldom discussed, but also serve as a potential basis for fines and penalties.

The law requires that the Form I-9 process is conducted for all employees, but not true independent contractors. I emphasize the word “true” here because employers cannot circumvent their I-9 responsibilities by misclassifying employees as independent contractors. To classify a worker as an independent contractor, a rigorous analysis needs to be undertaken. Although this is outside the scope of this article, if you have questions regarding worker classification, you should contact legal counsel to assure that classification is appropriate.

In late 2017, then-acting Director of ICE, Thomas Homan, stated that his agency was looking to increase workplace enforcement to “four or five times” the current frequency. At the time, you could be forgiven for considering this mere bluster, but the agencies’ actions since 2017 unequivocally show that ICE intended to make good on that promise. Worksite enforcement is handled by Homeland Security Investigations (“HSI”), a division of ICE. In fiscal year 2018 (“FY2018”), which is the last year we have complete numbers on, HSI opened 6,848 worksite investigations. This was a huge jump from the 1,360 worksite investigations initiated in FY2017. ICE also made 779 criminal and 1,525 administrative arrests in FY2018, compared to 139 and 172, respectively, in FY2017. In FY2018 alone, non-compliant businesses were ordered to pay more than $10,200,000 in judicial fines, forfeitures and restitution. We are clearly amidst an historic enforcement surge.

ICE has several civil enforcement tools at its disposal. It can assess civil fines/penalties, criminal penalties (including prosecution of key individuals at companies who are engaging in a pattern or practice of violations), debarment from government contracts, as well as court orders requiring back pay and/or reinstatement of employees at companies where discrimination violations are found. ICE posts press releases of its self-proclaimed “accomplishments” in worksite enforcement, and interested employers can review them at https://www.ice.gov/news. Suffice it to say, the penalties can be very serious, with civil fines in the hundreds of thousands even for paperwork violations.

Employers in compliance, however, need not fear the dreaded audit. Here are some best practices that every business should utilize to minimize and mitigate potential risk:

Fill Out the Form Accurately Every Time
Avoid mistakes at the outset. My first suggestion is to have a dedicated I-9 team led by an I-9 captain. Do not simply let any employee conduct employment verifications; only knowledgeable, trained employees should be given the green light. Your I-9 team becomes knowledgeable through periodic training and reference to well-drafted policies and procedures. An initial training of your I-9 team is imperative to assure that each Form I-9 is filled out correctly. It’s an initial investment of time and resources, but correct execution of the form is cheaper than finding and correcting a multitude of mistakes in a future self-audit. Training should be repeated whenever new employees join the I-9 team and whenever U.S. Citizenship and Immigration Services (“USCIS”) issues revised forms or guidance relative to the process.

Use the Electronic “Smart” Form I-9
Back in 2016, USCIS released the “smart” Form I-9. This version of the form was dubbed “smart” due to the advanced error-checking functionality it made available when filling out the form electronically. It was (and to a large degree still is) very common for an employer to keep a stack of printed, “paper” Forms I-9 on hand for use in new hire onboarding. The problem with this approach is that the paper form does not alert the preparer to potential mistakes. The electronic version of the form does. For instance, if you enter a birthday date in the future, the “smart” form will alert you to this potential error before you try and print (note: filling out a form electronically does not change the requirement that all forms must still be printed and signed – in ink – before retention). This is just one of many errors that the “smart” form is designed to detect. The “smart” form also has “hover over” tips for the input fields, which can quickly head off common questions that the employee or you, the employer, may have when filling out Sections 1 and 2, respectively.

I get a lot of push back on this suggestion from my construction clients, who often are forced to conduct employment verification on site, but employers who can find a way to fill out the form electronically (i.e., on the computer) should do so. Let the “smart” form help you nip common mistakes in the bud. That is what it was designed to do.

Conduct Periodic Self-Audits
Getting your I-9 team the knowledge base to head off future errors is great, but what about the older records? You do not want to find out about fineable offenses after the government has initiated an audit. HSI has discretion to waive or mitigate fines for employers who have appropriately found and addressed errors on existing forms. You cannot backdate or “recreate” incorrect or missing documentation, but there is a lawful process to correct any errors that you may find. By conducting a self-audit in-house, or through the use of a competent immigration attorney, you can uncover potential mistakes and correct them before them reach HSI’s prying eyes. It may not allow you to completely avoid fines and penalties, but HSI routinely shows leniency to employers who dutifully audit and correct their existing records.

Destroy All I-9 Records that Can Be Lawfully Destroyed
Quite simply, HSI cannot fine you for forms that have been lawfully destroyed. Employers are required to keep I-9 records for all existing employees. For employees no longer working for your company, the records must be kept for three years from the date of hire or one year from the date of separation, whichever is longer. After that point, I-9 records can (and should) be destroyed. I recommend stapling a cover page to the front of all separated employees’ I-9 records to inform you exactly when that record no longer needs to be retained, then have a tickler system in place to destroy those records when the time comes.

Do Not Specify What Documents an Employee Should Provide
The Form I-9 lists a multitude of documents (or combinations of documents) that an employee can provide as proof of a work authorization. Each employee is allowed to choose which List A or Lists B/C documents it prefers. You cannot, for instance, require a green card holder to produce a green card. A green card holder may prefer to utilize a List B document (such as a driver’s license) with a List C document (such as a social security card). Employers who mandate or even suggest documents can run afoul of the anti-discrimination provisions of IRCA. I recommend that you give each employee the approved list of documents and declare that any reasonably genuine document (or combination of documents) will be accepted.

The foregoing is some, but not all, the best practices that an employer can utilize when conducting an employment authorization verification. The full list should be incorporated into your I-9 policies and procedures. Consult with your immigration attorney to assure that your policies, procedures and trainings are up-to-date. Give your business the peace of mind in knowing that an audit will not become a financial and legal headache.

The views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.