Immigration: How Employers Can Protect Themselves
The complex new regulations, the elevated fine levels, the new I-9 form, the updated Employers Handbook and the increased attention to immigration from the new Administration all put employers at risk.
Employers Are Walking a TightropeBack in 1986 when employers were first saddled with the burden of completing I-9 forms, a Member of Congress had me and an Immigration Service official present a seminar for local business people regarding the new requirements.
The INS official assured the crowd that completing a short form was a very routine requirement which would not unduly burden HR professionals.
As a former INS prosecutor, I tended to be more skeptical. I warned employers that they were walking a tightrope. If they did not comply with I-9 requirements, they could face fines for paperwork violations and for hiring unauthorized workers. If they *over-complied*, they could be fined for document abuse and discrimination.
Over the years, USCIS requirements for working in the US have grown increasingly complex, and few employers whose I-9s we have reviewed are in full compliance with the law.
Many companies have been forced to pay multi-million dollar fines for hiring unauthorized workers. In 2015, before the fine amounts doubled, a California employer was fined over $600,000 simply for I-9 paperwork violations. Other employers have paid over $100,000 in document abuse and discrimination fines related to I-9s.
How Your Company Can Survive an I-9 AuditI-9 forms must be retained for 3 years after an employee is hired, or 1 year after his employment ceases, whichever comes later. As a practical matter, your company may be storing I-9 forms which were completed many years ago.
What if some of the forms for existing employees are defective? Fortunately, DHS rules allow you to correct these, and if you do so before you receive a notice that your I-9 forms are being audited, each mistake that you correct can save you hundreds, or even thousands, of dollars in fines.
Therefore, I recommend that you conduct an internal audit of all your I-9 forms. It is a good idea to hire an experienced immigration attorney to help you. In my experience, the attorney fees that you pay are usually only a small fraction of the potential fines that you will save in the event that you are audited.
Also, there are a lot of free materials online which have the potential to save your company many thousands of dollars.
I strongly recommend Human Resources Managers become familiar with the new USCIS Handbook for Employers. It has a section answering frequently-asked questions which is very helpful.
My short article in Recruiting Trends magazine Can Your Company Survive An I-9 Audit is a good place to start. You may also want to watch my videos on this subject.
The Employers Immigration Guide on our website links to each of the above-referenced materials as well as to I-9 Central (USCIS) and to a variety of other free resources.
Finally, you may want to sign-up for the government*s E-Verify Program. Our law firm did so over a decade ago as did many of our corporate clients. E-Verify is a free Internet-based system which allows employers to verify the eligibility of employees to work in the US. Though E-verify is far from perfect, I expect that it will become mandatory for most employers in the near future.