Is your business ready for an I-9 audit this holiday weekend? A 5-step action plan | Fisher Phillips


Last year, federal immigration authorities decided that summer vacation weekends were the perfect time to conduct spring I-9 audits on unsuspecting employers — and there are signs that this trend will repeat itself next July 4th and Labor Day. Given the heightened activity we saw over Memorial Day weekend, we expect Immigration and Customs Enforcement (ICE) to re-examine the immigration documents of thousands of employers in the coming days. With the challenges of the COVID-19 pandemic and labor shortage crisis still looming, employers may not have I-9 compliance high on their list of priorities. However, many of the relaxed I-9 compliance rules that the Department of Homeland Security (DHS) has temporarily put in place in response to the pandemic will soon end, making what is expected to be a busy summer worse. What should you know about I-9 compliance practices as we prepare for summer vacation? This overview summarizes your responsibilities and gives you a five-step action plan.

End of temporarily relaxed rules

During the I-9 verification process, employees must provide their employer with documentation showing their identity and work authorization. Employees can show a List A document from Form I-9 (like a passport), which verifies both identity and work authorization – or they can show a List B document (like a permit to drive), which establishes the identity, more a List C document (such as a social security card), which establishes work authorization.

On May 1, DHS ended the temporary COVID-19 policy allowing employers to accept expired List B identification documents. In 2020, DHS adopted this temporary policy in response to difficulties faced by many many people to renew their documents during the COVID-19 pandemic. With the end of this temporary rule, employers must now accept only unexpired List B identification documents as part of their I-9 verification process, as they did before the pandemic. A growing number of employers have recently reported receiving I-9 inspection notices from ICE indicating that ICE may have resumed its practice of issuing inspection notices just before a weekend. holiday. Therefore, it is more important than ever for you to ensure that you meet all I-9 requirements and comply with all record keeping responsibilities.

What is an I-9 inspection?

The Immigration Reform and Control Act requires all employers to verify the identity and employment eligibility of their employees hired on or after November 7, 1986, through the I-9 verification process . You must have a properly completed Form I-9 on file for all current employees and retain the properly completed Form I-9 for former employees for three years from the date of hire or one year from the date termination of the employment relationship, as the case may be. is the latest date. You should keep Form I-9 of current and past employees for inspection in case of audit by authorities.

In the event of an audit, ICE will typically begin the process by issuing a Notice of Inspection (NOI) to an employer. ICE does not need to have a subpoena or warrant to perform an I-9 inspection. Upon receipt of an NOI, you will only have three business days to file the requested I-9 forms and supporting documents. ICE may also require a personal appearance to testify about the company’s I-9 practices.

During an inspection, ICE may request I-9 forms for all current employees hired after November 6, 1986, and I-9 forms for all former employees during the retention period. ICE may also request an electronic list of employees, quarterly wage and hour reports, payroll data, Social Security mismatch correspondence, E-Verify documentation, and business information such as phone numbers. employer identification, address and business licenses.

For any technical, procedural, or material violation, the employer may be fined between $252 and $2,507 for each I-9 paperwork violation. ICE can also access a fine of $627 to $5,016 for the first offense for any employer knowingly employing an undocumented worker. This penalty can increase significantly from $5,016 to $12,537 for the second offense and from $7,523 to $25,076 for the third or subsequent offense. The final penalty amount is determined based on several factors, including company size, overall good faith compliance effort, severity of the violation, number of unauthorized workers, and history of violations. .

What should employers do? 5-step action plan

To protect your business and minimize any potential liability, you should consider the following five-step action plan:

  • ensure your I-9 compliance process are in place, up-to-date, and monitored by staff managing the I-9 process;
  • train managers and staff to correctly and timely complete an I-9;
  • also educate your managers on what action to take if they become aware of a employee who may not be allowed to work in the USA;
  • have a outside immigration attorney review your I-9 forms to help you identify any correctable errors so you are prepared to present your I-9 forms in the event of an ICE audit; and
  • establish a rapid response team who would be responsible for contacting your Immigration and Employment Counsel in the event of an ICE visit to your workplace.

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