I-9 Audits: 7 Tips for Employers

Now that the Obama Administration has decided to zero in on employers with massive numbers of I-9 audits (652 in one day!), let me provide you with a few tips which I've gleaned from assisting employers survive such audits over the past 20 years:

Tip #1 - Make sure that each new hire completes Section 1 of the form on the first day of employment. If the employee's information is incomplete, it is you who pays the fine, so proofread this section very carefully.

Tip #2 - Complete Section 2 of the form by the employee's third day of employment. Show the employee the back of the form, and have him/her show you either one List A document (ID and Employment Authorization) or one List B document (ID) and one List C (Employment Authorization) document. Do not request specific documents or additional documents.

Tip #3 - Keep your I-9 forms separate from employee personnel files. Otherwise, you will have a lot of sorting to do if you receive a Notice of Inspection. The forms must be retained for three years after the employee is hired or one year after his employment ceases, whichever is later. Keep the forms of active employees separate from those of former employees. Purge the latter on a regular basis.

Tip #4 - Create a tickler system for employees who check the box in Section 1 which indicates that they possess only temporary employment authorization. Send them notices well in advance of the termination of their work permits advising them of the need to update their I-9 forms. Remember that certain types of work status are extended simply by submitting an application for an extension to the USCIS. Never update the forms of U.S. citzens or permanent residents, even though "green cards" all have expiration dates.

Tip #5 - Protect yourself from violating the "antidiscrimination" provisions of the law by treating employees who may look or sound "foreign" to you the same as employees who are U.S. citizens.

Tip #6 - Carefully read USCIS' "Handbook for Employers" which we link to from our "Employers' Immigration Guide" at

http://shusterman.com/toc-emp.html#9
Tip #7 - Have an attorney who has expertise in I-9 laws and procedures to review all of your I-9 forms at least once each year. The amount that you spend will be a tiny fraction of what you might be fined by the government if you are audited.

I-9 Audits: Catch-22 for Employers

The U.S. Immigration and Customs Enforcement (ICE) announced today that it served Notices of Inspection upon 652 businesses around the country. Compare this with the 508 businesses which received Notices of Inspection in fiscal year 2008.

An ICE spokesman told the press: "Part of the strategy is to show businesses that we mean business."

The new Obama policy substituting audits for raids, and civil penalties on employers rather than criminal penalties on workers is a step in the right direction. It may even set the stage for comprehensive immigration reform by showing that the administration is serious about immigration enforcement.

We link to the ICE press release and the news story from our "Employers' Immigration Guide" at

http://shusterman.com/toc-emp.html#9
Notices of Inspection are served on employers to compel them to surrender their I-9 forms to the government. The I-9 form verifies the identity and the employment authorization of each employee hired by the company.

However, employers do not have the authority to question the legitimacy of the documents that are presented to them unless the documents are obviously false. An employer who attempts to do more risks great sums of money for violating the document abuse and/or anti-discrimination laws. Ask Jose Sanchez for more or different documents than Joe Smith, and you are asking for trouble, big trouble. See our article "INS vs. INC." at

http://shusterman.com/sanction.html
The truth is that most "undocumented" workers are ready, willing and able to produce the required documents when an employer presents them with an I-9 form.

So, in the next few weeks, when ICE inspects the I-9 forms of many thousands of employees who work for these 652 companies, the agency will learn (No big surprise.) that thousands of these documents are either false or belong to others.

The workers will lose their jobs, but if history is any guide, they will simply pick up and start looking for new jobs.

The employers can not be fined unless their I-9s were done improperly or not at all. In most cases, they will receive fines for being sloppy, not for being "unscrupulous". Of course, if an employer has actual knowledge that an employee is illegally present in the U.S., he could face criminal penalties, but rarely does ICE have enough evidence to press criminal charges.

Earlier today, I was interviewed regarding this subject by a newspaper reporter. As a former INS prosecutor, I have represented quite a few companies facing I-9 audits.

I spoke with one of my former clients today. His company underwent an I-9 audit when they applied for labor certification for three undocumented workers. I remember meeting with the INS investigator and handing him a pile of I-9 forms. The INS could have subjected the employer to many thousands of dollars in fines. Instead, we agreed to enroll the employer in what is now called the "E-Verify" program, and the government agreed to waive all fines.

However, the employer lost many of his most valuable employees, and it took years for the business to recover. How about the employees? They ended up working for his competitors.

Who came out ahead in the end? No one as far as I'm concerned.

Our broken immigration system will not be fixed by penalizing employers who are trying to abide by the law, and forcing many of their workers to find new jobs. If there was ever a time to amend our laws to conform with the laws of the free market, it is now.