The number of audits of employers performed by Immigration and Customs Enforcement (ICE) has increased dramatically since the Obama Administration took office-from 250 in 2007 to more than 3,000 in 2012, and with fines totaling $13 million.
These audits focus on determining whether employers are satisfying the Form I-9 requirements or, knowingly or unwittingly, are employing illegal workers. The U.S. Citizenship and Immigration Services (USCIS) released the new Employment Eligibility Verification Form I-9 on March 8 (available on its website), which employers are required to use for all new hires to verify their identity and that they are authorized to work in the United States.
The fines for Form I-9 violations can range from $110 to $1,100 per violation, with higher fines levied against employers with more mistakes. Employers and managers who deliberately neglect their legal responsibilities can even face criminal prosecution.
With such high stakes, employers must ensure they are complying with the legal requirements by performing a self-audit of their I-9 forms on an annual basis. Through the audit employers should do three things: first, confirm the I-9 is kept separate from the employee's personnel file; second, that there are separate binders for current employees and terminated employees; and third, that I-9 forms have been retained for three years from the date of hire or one year after termination, whichever is longer.
Conducting the Self- Audit
The first step in conducting a self-audit is making sure there is a Form I-9 for every employee. This should be done by doing a payroll check of all employees, and matching them with I-9s on file.
Next, the employer should go through each I-9 looking for errors. Some common errors include missing dates or addresses, the absence of a signature by the employee or employer, documents accepted that are not listed as acceptable documents on the back of the I-9, information in the wrong box, and missing information.
If errors or mistakes are found, handle them cautiously, as there are limitations as to what can be corrected and by whom. In auditing the I-9s, the forms should be marked as Audited and an audit memo should explain the circumstances of the audit and any mistakes or errors that were found. Corrections that are permitted should be made in different colored ink, dated and initialed.
The employee completes section 1 of the form, and only the employee may make corrections in this section. If the employer has copies of the documents containing the information, the employer may insert a missing Social Security number or the nine digit alien registration number. If the documents are not available, the employee must complete the missing information.
Section 2 is completed by the employer, who can fill in missing information such as a driver's license, if a copy of the document is available. A missing date of hire can be inserted. The employer, however, cannot insert a date of completion.
When An I-9 is Missing
If an I-9 is missing for an employee, it is necessary to complete a new I-9. In doing so, the employer should meet with the employee as it would a new hire. The employee should bring the appropriate documentation to be reviewed by the employer. A new I-9 should be completed, but the date of completion may not be backdated; it must instead indicate the actual date of completion and the Form I-9 should be marked Audited.
By conducting a self-audit of an employer's Form I-9s, an employer can help minimize exposure to fines should an ICE audit occur. And of course, an employer with any questions should consult legal counsel with regard to specific situations.
Current Issue - June 2024