ICE could Quintuple Worksite Enforcement: Would your I-9 Forms Pass an Audit?

Strict compliance with the often-confusing I-9 rules is your only defense against serious monetary penalties and criminal arrests.
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Human Resources

Would your I-9 forms pass an ICE audit? 4 steps to make sure

The Trump administration is promising a major crackdown on employers that hire undocumented immigrants. Immigration and Customs Enforcement will "significantly increase” the number of inspections in worksite operations, according to acting ICE Director Tom Homan.

He said Homeland Security Investigations, ICE's investigative arm, could potentially quintuple its worksite enforcement actions next year. ICE conducted 1,279 workplace audits in 2016, down by 59% from 2013 when 3,127 employers were audited.

"We've already increased the number of inspections in worksite operations,” Homan said Oct. 24. at a conference sponsored by the conservative Heritage Foundation. "You will see that significantly increase this next fiscal year.” Homan said the goal was to cripple the employment "magnet” that draws undocumented immigrants to enter the U.S.

Stepped-up worksite enforcement puts HR professionals squarely in ICE's crosshairs.

"We can audit any company, anywhere, of any size." — ICE Special Agent Brad Bench

ALERT: The feds have released a brand-new version of the I-9 form with new requirements. What's new on the revised I-9 form? And are you next in line for an audit?

Victor Leos, a former HR executive for the Garland, Texas, Independent School District found that out the hard way Oct. 24 when he was sentenced to 24 months in federal prison and ordered to pay $317,482 in restitution for falsifying immigration documents.

Leos was responsible for recruiting teachers from Mexico, Central and South America, and the Philippines to fill open teaching positions. From 2007 to 2012, Leos engaged in a criminal conspiracy with outside recruiters to recruit and hire foreign teachers. In exchange, he received kickbacks.

In his guilty plea, Leos admitted he falsified visa applications for 38 immigrants.

Administrative I-9 audits are ICE's tool of choice for building criminal cases against employers that hire undocumented workers. Follow these 4 steps to conduct your own I-9 audit:

1. Determine whether you have I-9 forms filled out for all current employees. If any are missing, you will have to ask those employees to fill it out again. Do not backdate the new I-9s to reflect when they should have originally been done. Simply note and initial that the old one was lost and a new one was created.

Too often, company execs and HR managers assume their I-9 compliance practices are in order when, in fact, their records and policies are littered with mistakes, leaving the business and individuals open to fines, lawsuits, and jail time.

Plus, ICE has made a big effort to publicly emphasize its criminal investigations of employers that hire undocumented workers. In just one year, ICE arrested 238 corporate executives, managers and even HR professionals. Are you sure that your I-9 practices can pass muster?

2. Correct simple errors (e.g., a missing date, a transcription error) by crossing out the wrong information and filling in the correct information. Initial and date the correction.

Note: If the employer signature is missing, do not sign it yourself because you have not seen the employee's identity and employment authorization documents yourself. The signature is an attestation that you have examined the documents and they appear to be genuine and relate to the individual.

3. If there is an error related to an employee's documents (e.g., missing information), you will need to have the employee bring in either a List A document or a List B and a List C document. Do not require the employee to bring in the same document(s) that he/she originally used; you must accept any document(s) from the Lists Of Acceptable Documents.

4. If you are missing I-9 forms for former employees that should still exist (i.e., it has been less than three years after the date of hire or less than one year after termination), there isn't much you can do. If there are copies of the employees' documents attached, you can fix simple transcription errors. You can also look at personnel files to fill in a missing hire date. Otherwise, you do not have to contact former employees to correct other errors.

This is a good time to purge the files of I-9 forms of former employees that can legally be destroyed and to set up a system for periodically doing so if you don't already have one in place.

Register now for our timely webinar, I-9 Compliance Workshop. You'll be able to get in compliance with the advice from a true insider — a former ICE assistant chief counsel.

Specifically, you will learn:
  • I-9 101. Discover the 10 essential steps to correctly fill out the revised version of the I-9.
  • Documents. Which documents can you review for Lists A, B and C — and what has changed?
  • Copying. Should you make copies of driver's licenses and other supporting documents?
  • Kevin LashusReview. How far are you required to go to determine if a document is "genuine"?
  • Retention. Where must you store I-9s? Is a "binder system" the best? And how long must you retain them … 1 year, 3 years, more?
  • Disposal. What's the proper way to discard of I-9s — must you shred them?
  • Reverification. How can you handle reverification in the most legally safe and efficient way possible?
  • Internal audits. What can be corrected and who should be auditing?
  • Best practices. What else should you be doing?
  • Electronic I-9 systems. What to consider when going paperless.
The penalties are severe for I-9 violations, and the government is no longer negotiating fines of pennies on the dollar. I-9 fine levels were raised by 96% last year. And fines for "substantive" violations can reach $16,000 for each occurrence. ICE is also focused on building criminal cases out of I-9 audits. Don't run the risk of your boss (or you!) being led off in handcuffs. Develop solid, audit-proof I-9 practices by joining us December 7 for this important interactive event.
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