I-9 Audits is always a hot topic. Chief of U.S. Immigration & Customs Enforcement (ICE), John Morton, recently announced that the agency is going to increase the number of companies it will audit for I-9 violations and regularly impose fines on violators.
I-9 violations can be devastating. Fines for I-9 violations range from $110 to $1,100 for one single, minor, or technical violation. Incorrect I-9 forms can be used as evidence of knowingly hiring an illegal alien that can result in a fine of up to $3,200 per violation. A third offense can lead to a fine of up to $16,000 per offense.
In this guest article, former ICE Agent Mark Kochanski shares his experience and unique perspective with our readers about I-9 Audits.
As a former ICE agent who was assigned to a Worksite Enforcement Unit, I have first-hand knowledge of what may keep employers from being administratively fined for paperwork violations or prosecuted for illegal hiring. The first thing all employers should be aware of is that Employment Eligibility Verification (Form I-9) audits have been used for many years to ensure employer compliance with the law. Priorities may change from administration to administration, but the I-9 audit will remain an important tool for the government to ensure compliance. Donít be the unfortunate business featured on a news story with pictures of federal agents leading you or your employees away from your place of business in handcuffs.
This can happen as a result of poor administrative practices. That is not the way to gain publicity for your company. Have a plan in place, so when you are served with a subpoena for your I-9s you can be confident in the result. Here are a few easy ways to avoid unnecessary hassle:
If the business maintains the paper I-9, store the forms in a clean, secure place that is easily accessible. I can remember one employer who had the I-9s stored in cardboard boxes on the floor in a storage locker and when there was a bathroom plumbing problem the I-9s were damaged. A real mess.
The Form I-9 comes in versions of English and Spanish. The ONLY place employers may use the Spanish version is in Puerto Rico. If youíre not in Puerto Rico, donít be tempted to use the Spanish version because itís easier for the employee to complete without a translator.
Remember that the Form I-9 is not the property of the employer. That form belongs to the government. The government created it. So when an agent asks for them donít argue about it. Donít complain about it by asking the agent, ďwhy me?Ē. Many of the audits conducted are mandated by DHS headquarters with certain business sectors being chosen depending on priorities. Itís a numbers game. The agents are just doing what they are told.
The employer has 3 business days to turn over the I-9s. During that time, you can make corrections to the forms, if needed. This may make the difference in an administrative fine or a slap on the wrist. But please have the corrections made accurately and completely by someone who knows what to do. Donít make matters worse by re-doing I-9s and then destroying the old ones. This actually happened in another case. Know the guidelines. There is no need to panic because many errors are technical and can be corrected if detected in a timely manner.
I would recommend that employers make copies of the I-9s to retain in the personnel files, just in case something happens to the original or there is a question about information provided on the original. The agent will usually provide a receipt (Form 6051) for the I-9s when delivered.
Agents may want to question business personnel regarding hiring practices and procedures. Donít make any statement that would reveal any improper business practice. Ensure policies are in place so that anyone who is questioned provides a correct, consistent answer regarding hiring procedures, especially if questioned about who actually hires, who examines employment documents, who completes the I-9s and how the I-9s are maintained. If there are discrepancies, donít blame previous human resources personnel for errors. Itís your business and your responsibility. Be proactive. Save your hard earned profits for the business not for the government.
This last point is something I came across that I think is important but often overlooked. All employees are required to complete the I-9, thatís the law. That includes the company president. If you are the president or CEO, you canít examine your own documents and then attest to their authenticity. That reflects badly on the company and will send up a red flag to the agent conducting the audit and may cause the agent to focus on the company with extra vigor. Enough said.
Employers need to take compliance seriously because there are multiple errors that an auditor could uncover that would result in a fine. You need to learn how to prepare for an I-9 audit before your organization is next on ICEís hit list. Employers should take the necessary steps to ensure that they are not susceptible to the steep civil and criminal penalties associated with poor management of I-9's. For more information about our I-9 unique internal audits and Immigration compliance services, click here to connect with us.
Jacob J. Sapochnick is the managing attorney of The Law Offices of Jacob J. Sapochnick and is an active member of the American Immigration Lawyers Association; he has been invited to lecture on immigration law topics at various conferences in the United States and abroad. He has also published several articles on issues related to the field. Mr. Sapochnick, Esq. provides immigration law support to US Immigration clients worldwide. This includes assisting individuals and companies applying for Visas to work and live in the United States, Canada and Mexico. Mr. Sapochnick graduated from Manchester Metropolitan University, School of Law with a Bachelor of Law (Hons.) Degree. He also attended California Western School of Law in San Diego, CA and obtained his LL.M (Masters) degree in international and comparative law. Thereafter, he pursued his career, focusing on US business immigration law. Mr. Sapochnick assists foreign workers to live and work in the United States by understanding their situation, goals and objectives he obtains the appropriate work and investment visas. His clients range from multi-national companies to mid-sized and small companies, as well as individuals undergoing the U.S. immigration process.