Government Continues to Crackdown on Employer I-9 Violations

by Ronald Shapiro
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Employers take note: Vigilance and accuracy is key when it comes to I-9 employment verification forms.

I-9 investigations are at an all-time high, with more than 3,000 audits taking place in 2012 compared to only 250 in 2007. In fact, according to the Association for Corporate Counsel, between fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million and the number of company managers arrested increased to 238.

It appears that employers aren’t the only ones concerned about the government’s recent crackdown on I-9 verification procedures, as well. Last month the Department of Homeland Security’s Office on Inspector General issued a report calling into question the Immigration and Customs Enforcement’s work-site enforcement program. The program – which is charged with carrying out immigration enforcement efforts – was questioned for targeting employers of undocumented immigrants by inspecting their I-9 employment verification forms, instead of carrying out large-scale work-site raids for undocumented workers.

According to the report, the field offices of Homeland Security Investigations are making inconsistent applications of work-site enforcement. For example, as this Bloomberg BNA article indicates, between January 2009 and August 2012 the Denver and Chicago field offices each had about 31 percent of their inspections result in warnings and 31 percent result in fines, whereas New Orleans issued fines in only about 7 percent of its cases, with 78 percent resulting in warnings.

What Should Employers Do in Light of the Government’s Enhanced Scrutiny?

Given that the government is stepping up its investigations and looking more closely at I-9 procedures, many business are wondering what they can do to prepare for a potential audit by U.S. Immigration and Customs Enforcement (ICE). First and foremost, most organizations would benefit greatly from enhanced I-9 self-examination procedures. Organizations should examine their current I-9 forms to confirm that they are up-to-date, look at their current processes and procedures, and consider implementing new processes and procedures with respect to I-9 verifications.

As they organizations review their current procedures and consider implementing revised procedures, they should make sure that they are complying with I-9 requirements by doing the following:

  • Allowing the employee to choose which documents to present for verification.
  • Refraining from requesting more documents than necessary.
  • Physically examining each original document the employee presents to determine if it reasonably appears to be genuine and relates to the person presenting it. The person who examines the documents must be the same person who signs Section 2 of the Form I-9. The examiner of the documents and the employee must both be physically present during the examination of the employee’s documents.
  • Recording the document title shown on the Lists of Acceptable Documents, issuing authority, document number, and expiration date (if any) from the original document(s) the employee presents.
  • Providing the employee’s first day of employment under “Certification.”
  • Providing the name and title of the person completing Section 2 in the Signature of Employer or Authorized Representative field. Sign and date the attestation on the date Section 2 is completed.
  • Recording the employer’s business name and address.
  • Returning the employee’s documentation.
  • Refraining from using pre-populated information for Section 1 if using electronic software for I-9 completion, storage, and compliance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ronald Shapiro | Attorney Advertising

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