The U.S. Immigration and Customs Enforcement (ICE) has essentially heightened its worksite authorization endeavors in recent years. It can be seen that this increasingly heavy schedule has been increasing without any damping. The previous ICE Acting Director Thomas Homan, in the year 2017, had directed the Homeland Security Inspections (HSI) to expand the worksite enforcement activities in the coming years and to focus both on employers and employees by performing I-9 audit and inspections.
The worksite enforcement actions under HSI surged exponentially moving from 2017 to 2018. The I-9 form audits saw an increase of 340%. Other than this, there was a massive increase in criminal arrests (about 460%), administrative arrests which also boomed to 787 %. While HSI audits cracks down in finding and taking action for the illegal immigration which some employers do in the name of hiring a foreign worker, it is not limited to this role solely.
The major enforcement tactic is the inspection of I-9 Forms. HSI investigates the I-9 form to confirm whether the employer has employed all workers on a zero-tolerance policy towards illegal immigrants and also verifies the ids and eligibility of all employees’ especially foreign workers.
ICE I-9 AUDIT AND RAIDS
ICE conducts audits and raids. Employers must know that they are significantly different though the same motto at the end of the day. An audit is something that is done after providing a Notice of Inspection (NOI) to the employer 3 days prior to an investigation. A raid essentially differs because it is done without giving any prior notice. This approach is adopted if ICE suspects something funny in the working of any firm.
Employers must properly maintain their documents to keep their firms safe from any sort of penalization. HSI audits are something that cannot be circumvented. These audits can be safely approached by maintaining a proper guideline in such a case, unlike raids. Raids are random and to be in a safe place, employers must maintain proper records of I-9 forms with all other documentation at all times.
The way to respond NOI during I-9 audit
For any audits, ICE will send a three-day advance notice known as Notice of Inspection (NOI). Prepare well before any such audits. The measures to take in such a case is given below:
- Proper self-inspections to check whether all employees on board have all needed work authorization with proper identities. Take help from legal counsel, if need be.
- After a complete review of the existing records, reach back to ICE over the NOI.
- Check-in with all concerned with NOI, employee, and management included.
There is no way to avoid an ICE audit which can be random but with a 3-day prior notice. Here is a set of issues and their resolution that will be helpful in the case of both audits and raids.
Basic mistakes employers do in concern with Form I-9
- Inadequate verification of I-9 forms
As HSI uses I-9 forms as the major enforcement device, it inspects them thoroughly. This tool is used to analyze whether the employers implement proper verification in case of their employee’s work authorization. HSI has the right to look through all I-9 forms or any specific ones or payment records from the employer as per their investigation proceedings.
The mistakes usually range from basic ones such as improper paperwork errors like failing to mention the expiration date of an employee’s work authorization to serious ones which include employing a worker who has no or expired work authorization. These mistakes are caught from the forged documents or tampering in I-9 forms etc.
This paperwork violation can be punished with a fine ranging from $234 to $2,332 per violation. Check 8 C.F.R. 274a.10(b)(2). While an illegal worker in your firm can cost you a fine ranging from $583 to $23,331 per violation. Check 8 C.F.R.274a.10(b)
- Over verification of I-9 forms
Considering the HSI audits, many employers want to stay safe. In this, they might their employees to submit specific or multiple documents during the I-9 process for a ‘smooth’ verification process.
But, if the documents requested are beyond what the law requires, then it might become a ‘document abuse’ and you might be caught in, what is called the, ‘Over verification’ violations. This comes under the anti-discrimination provisions of IRCA.
[ALSO READ: Form I-9 Inspection Factsheet by US ICE.]
Best Employer Practices to safely approach an HSI audit
- Conducting self-audits
As employers, it is essential to maintain all the standards with respect to the work authorization of the employees. To keep this standard, periodical internal audits of I-9 forms will help in keeping all the requirements compliant with IRCA criteria. Click here to know more about holding an internal audit that is in tune with employer sanctions as well as the anti-discrimination policy of IRCA.
One should realize that self-auditing form I-9 is not to hide the mistakes. But rather it was to prove that you as the employer kept trying to be compliant with all regulations with a proper policy in place. Keep in mind that the employee directly oversees any correction in section-1 of the Form I-9.
- Avoid discrimination violations
It is understandable that in view of ICE audits, employers become tense, and to stay compliant they are prone to mistakes. It is important to remember that in such a situation you should not forget to avoid practices that might discriminate.
See to it, you and your HR team put in a request for only those documents which are officially mentioned by the rules. Original documents must only be requested if the original Form I-9 is improperly completed.
Also, employers ought to try not to make random blank demands for documentation to any one category of employees. If any done unknowingly, see to it that all the remedial measures are done to soothe the situation. Also, this should be properly documented.
‘To err is Human’- Always keep this in mind while working with Form I-9 and concerned legalities. This mentality will help you better your auditing standards. This in turn will help you to keep all your records, compliant with the rules. Be mindful of ICE raids.
Be polite while interacting with the investigating officers. The increase in HSI audits only shows that the enforcement is being strictly adhered to. If you, as an employer, fail it, there might be repercussions. Some of it may go beyond just being monetary fines.