Just a few years ago, your chance of being targeted for a federal audit of your I-9 forms was remote. That’s all changed. The “bold new audit initiative” launched during the Obama administration by the U.S. Immigration and Customs Enforcement (ICE) has yielded a dramatic increase in employer audits, fines and arrests. Employers would be wise to make sure their I-9 forms are in compliance before the proverbial knock on the door.
Audits and arrests
ICE last year audited more than 3,000 organizations for I-9 compliance, a number that is 12 times higher than in 2007, according to ICE statistics.
Total fines have grown from just $1 million in 2009 to nearly $13 million last year. Median fines were $11,000 for workplaces with noncompliant I-9s. Texas employers saw the most fines, followed by New Jersey.
Plus, ICE has made a big effort to publicly emphasize its criminal investigations of executives, HR and managers. Last year alone, ICE arrested 238 corporate officers, including a manager at an Illinois hiring firm who got 18 months in prison.
Since 1986, employers have been required to complete and retain a copy of the I-9 (Employment Eligibility Verification Form) for each employee.
ICE man cometh?
The agency doesn’t plan on slowing down. In fact, President Obama declared that, even after these audit efforts, “too many employers game the system by hiring undocumented workers.” His new immigration proposal calls for increased penalties against employers.
ICE is hoping this audit spike acts a
s a warning to other employers.
“If companies know we’re out there, looking across the board, they’re more likely to bring themselves into compliance,” said ICE special agent Brad Bench, in a recent Associated Press report. “We can audit any company anywhere of any size.”
Bench said ICE does some random audits, but often follows leads from the public, employees and other employers.
How to respond
Do not wait for ICE to darken your doorway before you take I-9 compliance seriously.
Employers should implement an effective and workable compliance plan for their organizations, including conducting regular I-9 audits, making any necessary corrections to forms, responding appropriately and quickly to ICE or Social Security Administration inquiries and training staff who complete I-9s on proper procedures.
Online resource: Surviving an audit. The audit process typically starts when an ICE agent serves a notice of intent to audit (NOI). For info and tips on the audit process, read “The ICE man cometh: How to survive an I-9 audit.”
How long to retain I-9s?
Federal law requires employers to have a completed Form I-9 on file for each employee. To calculate how long to keep an employee’s I-9, the USCIS offers the following simple worksheet:
1. Date the employee began work ____________________________
A. Add three years to the date on line 1 ____________________
2. Date employment was terminated ____________________________
B. Add one year to the date on line 2 _________________________
3. Which date is later, A or B? Enter the date __________________________
Bottom line: Keep the form for three years, or one year after termination, whichever is later.
Note: Employers are required to retain the page of the form on which the employer and the employee enter data. If you make copies of documents presented by employees, the USCIS says “those copies should be kept with the I-9 forms.”
I-9 compliance: 9 do's and don'ts
1. Do require all new hires to complete and sign Section 1 on their first day of work.
2. Don’t ask an applicant to complete an I-9 prior to making a job offer. Unhired applicants can use I-9 information to allege that you discriminated against them.
3. Do review each employee’s documents to make sure they’re on the new version of the I-9’s list of acceptable documents and that they appear genuine. (Access the updated list here.)
4. Don’t ask new hires for any particular documents or for more documents than the I-9 requires. The employee chooses the documents, not you.
5. Do establish a consistent procedure for completing I-9s.
6. Do make and retain copies of all I-9 documentation provided. (Only a few states make this mandatory, but it’s a good idea.)
7. Don’t forget to keep a tickler file to follow up on expiring documents that limit the employee’s authorization to work.
8. Do keep I-9s and copies of documents for three years after the employee’s hire date or one year after his or her termination, whichever comes later.
9. Don’t put the I-9 in an employee’s personnel file. To protect your company against discrimination claims, keep the I-9 and supporting documentation in a separate file.
