Form I-9s – How to Avoid the Most Common Mistakes
Immigration and Customs Enforcement (ICE) raids are not what they used to be. There was a time when ICE investigators surrounded buildings, kicked in doors and herded workers into interrogations and, ultimately, onto buses and planes for deportation. Now the approach is towards increased paper audits and administrative fines; some have called this focus on paper audits “silent raids.”
Moreover, ICE has now focused its efforts on auditing and investigating employers
to determine if they are satisfying the Form I-9 requirements. Driving this is a
whole new crop of ICE investigators, Notices of Inspection (NOI) and fines. Recently, the
Department of Homeland Security’s Immigration and Customs Enforcement issued a
strategic plan for worksite enforcement through fiscal year 2014. ICE intends to create
a “culture of compliance” through education, I-9 audits, and criminal and civil
sanctions. Reportedly, over 2,335 NOIs have already gone out to employers in 2011, and
the year is young.
The employer (that’s you) will be informed of the inspection in person or by
certified mail, generally, at least three days before it occurs. ICE investigators may also
use subpoenas and warrants. Investigators must be provided with the requested documents;
employers who refuse or delay an inspection will be in violation of the law. Always remain courteous and professional with ICE investigators but consider calling your attorney or another professional who can assist you, because simply cooperating and turning over all documents promptly will not earn you favor with ICE.
As you know (we hope), all employers in the U.S. are required to verify the work eligibility and identity of all employees within three days of hire. Remember, Section 2 of the Form I-9 seeks documentation that “proves” individuals or new hires are who they say they are, and that they are eligible to legally work in the U.S. It makes no difference if the employee is your mother, your spouse or your best friend – you still must maintain a properly executed Form I-9.
The fines for “simple” or “technical” I-9 violations can range from $110 to $1,100 per violation. Substantive violations can be much higher, in the hundreds or thousands of dollars. Employers and their managers also can face criminal charges if they deliberately neglect their legal responsibilities in this area. So take heed; look back and conduct an independent Form I-9 audit. Some items can be corrected while others should be explained. However, if corrections are improperly made, it can worsen an already bad situation.
So, what should you do? Since no one knows the exact “profile” of a company most likely to be targeted for an ICE audit, consider these tips:
1. Complete the Form I-9 within three days of an employee beginning work for pay.
2. Keep Form I-9s in a single binder that is separate from employee personnel files.
3. Use a current Form I-9; current valid forms include Rev.08/07/09Y and Rev.02/02/09N.
4. Do not accept documents with an outdated expiration date.
5. If the document(s) presented by the new hire is on the List of Acceptable Documents, reasonably appears to be genuine and relates to the person presenting it, you may accept that document to complete the Form I-9.
6. Making copies of the documents presented is acceptable, but not in lieu of completing Section 2 of the Form I-9.
7. Make certain the person(s) in your practice who completes the Form I-9 is properly trained.
8. Strike through any information to be corrected with a colored pen, and then date and initial. Never backdate.
9. Keep Form I-9s for a minimum of three years from date of hire or one year from termination, whichever is longer.
10.Conduct a self-audit of your Form I-9s to make sure they are correctly completed.
There is argument whether “fixing” incomplete or erroneous Form I-9s after being given a NOI is a good thing. Will ICE look favorably upon these corrections? The best thing to do is fix Form I-9 problems before investigators darken your door.
If you have questions about this topic or any other issues around the business of medicine, contact us via email or call us at 800-635-4040.