United States: I-9 Audits And Even ICE Site Visits Return With A Vengeance

Acting ICE Director Thomas Homan: " [Our] clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable"

What is the best way to prepare for an increase in resources and focus by Immigration and Customs Enforcement (ICE) on illegal hiring? Conduct your own internal audit and make corrections as needed before ICE appears. Thomas Homan, Acting Director of ICE, indicated last October that there will be a four- to five-fold increase in workplace enforcement. Increased enforcement will take several forms: on-site workplace investigations, I-9 audits, and even raids.

In addition to allocating significant resources to the border and wall, the Building America's Trust Act, introduced on August 3, 2017, increases active duty ICE officers to 8,500 and the hire of 1,500 additional agents for the Department of Homeland Security (DHS) to focus on investigations. Further, the number of ICE attorneys will more than double with the addition of 1,200 new attorneys to the existing 1,100.

Proof that ICE means business is the largest fine ever levied against an employer for "willful blindness" in hiring practices. On September 28, 2017, privately held Asplundh Tree Experts (Asplundh) was fined $95 million, $80 million of which is a forfeiture money judgment accompanied by signing an Administrative Compliance Agreement, with an additional $15 million in civil payments. According to court documents, from 2010 through 2014, Asplundh hired and rehired employees by accepting documents they knew were false. After six years of investigations, the Homeland Security Investigations Unit in Philadelphia found that Asplundh's hiring was decentralized so "that the... highest level of management could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers..." Thomas Homan commented that "[t]oday's judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet."

A caution for the over-zealous employer: ICE and the Office of Special Counsel at the US Department of Justice (OSC) have issued guidance on acceptable parameters of permissible internal I-9 audits and practices. OSC enforces the anti-discrimination and document abuse provisions of the immigration law. Following are these entities and other practical guidelines for conducting internal audits in order to be ready for this step-up in I-9 enforcement:

  • A new Form I-9 was issued on July 17, 2017. Old versions cannot be used after September 18, 2017. Never pre-print Form I-9s because of the risk of using an outdated and hence unacceptable version.
  • The same employer representative who completes Form I-9 must be the person who views the original documents that the employee produces.
  • If the I-9 is completed at remote locations, a trained representative of the company must complete the I-9 process. Dereliction by that representative will not insulate the company or its executives from liability.
  • If you decide to audit only a sampling of your I-9s as part of the I-9 internal audit, ensure the sample is based on neutral criteria and the timing cannot be traced to a tip, retaliation or for discriminatory reasons.
  • Have the internal audit process set up in advance, including how, when, and what HR will communicate to employees whose I-9s are deficient, incorrect, or missing.
  • If the audit uncovers an error in Section 1 of the I-9, contact the employee to correct the error. The employee should draw a line through the incorrect information in Section 1, enter the correct or missing information, and initial and date the new entry of information. The employer's representative should use the same procedure for correcting errors in Section 2.
  • If the audit discloses an incomplete I-9 or missing I-9, contact the employee, providing him or her with a copy of the I-9 and any attached documentation if it exists, with the I-9's list of acceptable documentation found with the I-9 instructions, and directions on how to obtain missing or inaccurate information such as contacting the local Social Security Administration.
  • A new I-9 should not be required if an existing I-9 appears deficient: the old form should be corrected. If a new I-9 must be used because the original I-9 lacks space for corrections or is damaged, it should be stapled to the deficient I-9. If no I-9 exits, then a written notation of this discovery should be made and a new I-9 completed.
  • If photocopies of documentation do not appear genuine, address that concern with the employee and provide the employee with the list of acceptable documents that is part of the I-9 instructions.
  • Provide a reasonable length of time for an employee to supply adequate identity and/or employment authorization documentation, even allowing or disallowing additional time based upon objective non-discriminatory and non-retaliatory criteria, and then document the basis for decision and efforts of the employee to obtain the acceptable documentation.
  • Never request a specific document as part of the I-9 process.
  • Rejecting an expired green card or US passport is unfair documentary practice.
  • Do not terminate an employee who was not employment authorized and subsequently becomes employment authorized.
  • Do not terminate an employee unless the employee cannot prove identity and/or work authorization.
  • If the employee has left employment when the error is discovered or there is no I-9, attach a signed and dated statement to the I-9 identifying the error and the reason the employee cannot complete or correct the error or provide information for a new I-9.
  • Keep I-9s segregated from other employee records and keep secure. They contain sensitive information and should not be filed with general personnel records.
  • Old I-9s and supporting documents can be destroyed after an employee has been terminated or resigns. Use the following formula as guidance when an I-9 can be destroyed: the longer of either one year from the date of termination/resignation or three years from the date of hire, whichever is longer.
  • If ICE provides a written notice of inspection, the employer has 3 business days' notice to produce the I-9 Forms unless ICE can produce a search warrant or subpoena. ICE can also request supporting documentation such as payroll and list of current employees, articles of incorporation, and business licenses.
  • However, the OSC has the right to inspect I-9 Forms without a subpoena or warrant.
  • Be prepared for a worksite visit by designating a company contact in advance who will interface with the ICE agent, and have I-9s ready for inspection. The ICE agent should always be escorted and not allowed to wander about the workplace.
  • If your company uses an external electronic provider for I-9 completion and storage, be sure the I-9s are accessible upon demand and unencrypted.
  • If your company uses outside contractors, be sure that they are employment authorized by a certification from the contractor, and indemnification if they are not. Do not take it upon yourself to determine employment eligibility.

Employers have been receiving scam emails from news@uscis.gov, a nonexistent email address made to appear as if it is from the US Citizenship & Immigration Services, asking employers to mail copies of their I-9s to an address provided. USCIS would never request I-9s in this manner. Do not respond or click links in them. If you have received such an email, you can report it here or send an email to uscis.webmaster@uscis.dhs.gov.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions