The Trump administration has begun to aggressively implement its immigration policy, and your business may be affected. In the last Trump administration, I-9 audits proliferated in order to identify unauthorized migrants and employers who were failing to ensure that their employees had work authorization. In FY 2018, the executive branch implemented more than 6,000 Form I-9 audits, a huge increase from the prior year's total of 1,360. The goal in 2020 was to reach 15,000 audits, but the pandemic prevented that realization.
A business will be notified that it has been selected for an audit by receiving a Notice of Inspection from the Department of Homeland Security (DHS) or Immigration and Customs Enforcement (ICE). The business then must produce all Form I-9s and supporting documents for current and recently terminated employees within three business days. The penalties are severe—up to $2,789 per Form I-9 error and up to $27,894 for each instance of knowingly employing an unauthorized migrant. Industries and workplaces with a large immigrant workforce are likely targets.
The best way to prepare for a potential audit and to prevent sanctions is to conduct an internal I-9 audit, both immediately and periodically. Our employment law attorneys can help guide you through this process. An I-9 audit involves reviewing I-9 records to identify discrepancies or gaps. In general, all Form I-9s should be complete, signed, and accompanied by the correct supporting documentation. The following are specific errors to look out for:
- Section 1 Common Mistakes
- Employee does not check a box indicating his / her citizenship or immigration status (or checks more than one box)
- Employee does not sign and date their completed section
- Section 2 Common Mistakes
- Employer does not enter the first date of employment
- Employer does not complete Section 2 within the first three business days of the commencement of employment
- Supplement B Common Mistakes
- Employer does not enter the date of rehire
- Employer does not complete Supplement B until after the employee's work authorization has expired
Note that employers may only correct errors in Section 2 or Supplement B. If you discover an error in Section 1, you should ask the employee to correct the error.
Unfortunately, there are even more pitfalls. Businesses might be unaware of their incompliance in the realms of electronic signatures, supporting documentation, record retention, and storage practices. To ensure your hiring practices are above reproach, contact our office and inquire about our employment law compliance services.
Remember that firing workers based on their immigration status or national origin is a violation of federal anti-discrimination laws. And management should never provide legal advice to employees regarding their immigration status.
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.
