If Immigration & Customs Enforcement (ICE) came knocking at your door, would your company be prepared for an I-9 audit? If you are unsure, then the answer is most likely “no.” The ICE is cracking down on I-9 compliance issues, conducting more than 3,000 audits per year, and leveling large fines to companies for I-9 procedural errors.
An example of the fines that are being allotted is illustrated in an article featured in our January HR Insights e-newsletter, “High Fines Continue to Provide Additional Motivation for I-9 Compliance.” This piece addresses how a medium-sized, event design company was fined $605,000 for I-9 issues.
In cases like the one described above, there are two key factors that play a role in the amount a company is fined for non-compliance. The first factor is the percent of I-9s completed that are done incorrectly or are missing. The second factor is whether or not the company is practicing “due diligence” where accurate I-9 completion is part of the company’s standards. Let’s take a look at the ways your company can address these factors to ensure I-9 compliance and to avoid hefty penalties.
#1 – Train Your Employees
Any employee in your organization who is designated to complete the form I-9 should be fully trained in all I-9 procedures, including completing the document, what identifications are acceptable, and record retention. The better you train your employees, the fewer errors they will make.
In addition to initial training, it is a good idea to provide material for future reference. The best resource for I-9 information is the I-9 verification page of the U.S. Citizenship and Immigration Services website. Along with general instructions, you will find the current I-9 form and a thorough 70-page reference guide, “Handbook for Employers, Guidance for Completing Form I-9.” I recommend printing this guide and putting it in a binder with section tabs for quick reference. Pages that are especially helpful can be highlighted and bookmarked, such as the Frequently Asked Questions section. Also, the guide can be saved to your employees’ computers. And, for any question that cannot be answered by the reference material, the USCIS website has a chat feature where you can ask questions and receive a quick response.
#2 – Conduct Regular Audits
A large part of “due diligence” is conducting regular audits of your completed I-9s to ensure compliance. Even the best employees can make mistakes and auditing your records will uncover these errors. How often you perform an audit depends upon how many employees you hire. If you hire only a few employees throughout the course of a year, yearly audits may suffice. If you hire a large volume of employees, quarterly or monthly audits would be better suited to discover any problems. Equally important to conducting audits, is taking measures to correct any errors that you find. Create an audit report that shows the date of your audit, any problems that were uncovered, and the corrective actions that were taken to remedy the issues.
#3 – Be Consistent
When completing form I-9, you have a few options, but the key is to be consistent so that every new hire can be deemed as being treated fairly. Any inconsistencies from one form to the next will most likely result in large fines.
First, you cannot tell someone which kind of I.D.’s they may use for I-9 completion. Your new hires can pick any List A document or one List B and one List C document. Refusing certain documents can be viewed as an adverse action against a particular employee. Refer to page 9 of the I-9 form for a full list of acceptable documents.
Second, if you take copies of one person’s I.D.’s, you must take copies of everyone’s I.D.’s. Please note that taking copies of I.D.’s and stapling them to the I-9 form does not replace the employer’s requirement to complete section 2 of the I-9. You must fully complete section 2 or you risk being fined.
Third, you may choose to use eVerify for processing your I-9s. EVerify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S. If you use this option, you must use eVerify for all of your new hires.
#4 – Have a Reverification Process in Place
One area where companies consistently falter is the reverification process. It is very easy to complete the initial new hire information, and if someone’s employment authorization expires, to allow the reverification to slip through the cracks. However, if you do not complete reverifications you are subject to substantial fines, especially if the individuals in question have not received new authorization to work in this country. To avoid issues with reverification, you can set up reminders in your computer that inform you when someone’s authorization is expiring. For instance, Area Temps has an I-9 expiration date field in our system that provides us with an alert when the I.D. needs to be updated.
#5 – Use the Current Form
It is mandatory for all employers to use the current version of the I-9 form, and fines will be levied to those employers using outdated or their own versions. You will find the expiration date in the top, right-hand corner of the I-9 form. The current 9-page form expires 3/31/2016, so keep your eyes open for a new edition. Once the I-9 has been updated, you will find it on the USCIS website. Typically, when a new form is released, a new handbook is issued as well. If you are using the handbook for reference, be sure to use the most updated copy.
#6 – Retain Your Records
If you are audited by ICE, you have only 72 hours to provide the requested I-9s. Any missing I-9s will result in fines. To avoid this scenario, make sure you have all I-9s available for quick retrieval, regardless of whether you are keeping paper or electronic files. For reference, the required timeframe to keep I-9s is 3 years from an employee’s date of hire, or 1 year after termination, whichever is later. Also, to avoid further scrutiny, make sure you are using proper disposal methods of your old I-9 forms.
In conclusion, with the growing number of audits conducted yearly, it is best to have the mindset “when we are audited,” not “if we are audited.” Following these six suggestions can help minimize your liability when you are audited; however, the information provided here is meant for educational purposes and not as legal advice. Before implementing or changing your company game plan, consulting your own legal counsel is strongly recommended.
Do you have any other tips to minimize your I-9 risk? If so, please share them in the comments section.
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