Click Here for Up to Date COVID-19 Information

For the health and safety of our team, FordMurray attorneys and legal analysts will be working remotely at this time. For contact information, click here.

I-9 Enforcement Could be Next Front in Immigration Battle

The Trump Administration made clear it plans to continue to link record high unemployment with immigration, as seen with President Trump’s recent executive order suspending entry to the U.S. on the H-1B, L and J-1 visas.

While business leaders across the United States challenge the legality and efficacy of the Executive Order, it is safe to assume the Trump Administration will not stop with lawful entry and admission. That is, I-9 audits could become another “weapon” in the current administration’s toolbox to “curb H-1B hiring” and focus on “Buy American, Hire American”.

Because this is a very real potential area of focus, now is the time for companies, large and small, to review their I-9 files, their I-9 practices, their I-9 procedures, and their I-9 policies to ensure that their internal “house is in order” before the government comes knocking.

FordMurray recommends employers and HR teams institute these 5 I-9 protocols to ensure compliance in an era of enforcement:

Make sure your I-9 files are maintained separately from your Personnel Files.

If your company is chosen to be audited, Immigration and Customs Enforcement (ICE) officers will give you three days to present your I-9 files. As a large company, imagine going through every Personnel file to pull I-9 documentation during that time (or worse, imagine ICE going through every Personnel file!). As a best practice, maintain I-9 files separately for all employees, so you can easily pull them for an ICE audit, or ideally, annual compliance self-audits.

Make sure your I-9 files are separated into three binders or files.

I-9 files should be organized as follows: (a) Current Employees who do NOT require reverification; (b) Current Employees who do require reverification; and (c) Termed Employees (whose I-9s cannot yet be purged). Organizing your I-9 files into separate binders or files will provide efficiency as you move through the process of reverifying and expunging I-9 records. In the event you are audited, you can be fined for any error on any record on file. Expunging records in a timely way can save you thousands of dollars if you are audited. You can destroy a former employee’s I-9 records one year from the date of termination or three years from the date of hire, whichever is later.

When is the last time you have reviewed your I-9s for accuracy and correctness? If your answer is longer than 6-12 months, jump to number 5 and do it today!

Plan on a yearly self-audit of I-9 files – even better, review your files twice a year. Regardless of how experienced your HR team is, small mistakes, made again and again, can result in tens of thousands of dollars in fines. Hiring a new member to your HR team? This is a perfect opportunity for a self-audit as part of the onboarding process.

Don’t know where to start with your self-audit? These are the five most common errors we see when we conduct I-9 Audits, and the easiest to spot.

  1. Does EVERY employee hired after November 6, 1989 have an I-9?
  2. Did the employee sign and date Section 1?
  3. Did the company representative sign and date Section 2?
  4. Are there glaring errors in Section 1 – the employee checked “U.S. Citizen” but provided a “green card” in Section 2?
  5. Are there glaring errors in Section 2 – the company representative failed to indicate the start date of employment?

Conducting periodic self-audits will cut down on these errors, clean up your compliance with the law, and provide some peace of mind should the government come knocking.

With the current administration cracking down on immigration, generally, having your I-9s in order, audited, and “ready for inspection” is a wise decision. Should you have any questions about how to get your I-9s in order or about I-9s generally, we offer complimentary consultations.

Review your current practice and policies regarding the I-9 process.

Do you request it to be completed before the individual is hired? Do you specify which documents the individual should provide? Do you copy only documents for individuals who require reverification? If you answered “yes” to any of these, you have a problem with your existing policies. Employers must walk the line between asking enough information and asking too little. You have to verify an employee’s eligibility to work in the US with the I-9 and the documentation required by that form, but if you ask for more than what is required by law you could be cited for discrimination.

Make sure you have reviewed your I-9s to make any corrections of paperwork or other errors.

Do NOT try to hide the errors. Rather, document your corrections. If you find mistakes on a form, update them, then initial and date the change. This will also help you keep up with getting updated documentation from employees whose past documentation may have expired.

During 2020, employers have already had to deal with the impact of COVID-19 on their business, their workforce, and their families. Human Resources Departments and internal legal staff have had to deal with community and state-wide shutdowns. They have had to wade through furloughs, layoffs, and work-from-home programs on the fly and with ever changing guidance and direction from the state and federal government. Despite these difficult challenges, many businesses, through the thoughtful and powerful guidance of HR and Legal, have persevered.

Fastidious I-9 compliance should be considered mission-critical to all HR leaders and in-house counsel, not just in times of heightened awareness. If you need help reviewing your I-9 system, you are not alone! We help businesses of all sizes create I-9 compliance programs that are audit-ready. We offer complimentary consultations so assess your current programs and suggest a program that fits your needs and budget. Contact us today to get started.