ICE Announces up to Five-Fold Increase in Form I-9 Worksite Inspections

On Tuesday, October 17th, the Acting Director of Immigration and Customs Enforcement (ICE) announced that a significant increase in worksite related investigations will be coming to employers nationwide during the next fiscal year. Speaking in front of an audience at the Heritage Foundation in Washington, DC, Acting Director Thomas Homan spoke at length about ICE’s ongoing mission to promote homeland security and public safety through the criminal and civil enforcement of “existing laws on the books” which govern immigration and border control.

During the last few minutes of his speech, he acknowledged that worksite enforcement is an important (and necessary) component of ICE’s overall strategy and pledged to increase the time spent by his agency on worksite audits by “four or five times” in the coming year. Mr. Homan also mentioned that ICE is taking worksite enforcement very seriously in order to eliminate the “magnet” of US jobs which the agency has long considered to be a factor in illegal immigration.

This announcement was expected (some would even say inevitable). Ever since President Trump took office earlier this year, employers have been bracing themselves for additional worksite audits and overall scrutiny stemming from the administration’s tough stance on immigration. Employers have watched (in the wings) as new policies emerged affecting foreign workers – including travel bans, the ending of President Obama’s DACA program, and most recently a new statement on the administration’s immigration policies that clearly prioritizes an enforcement approach.

And yet, to a degree, the “worksite” component has been largely missing from the agency’s messaging, with most of the emphasis being on the apprehension and removal of undocumented individuals. Worksite audits have been moving along at a steady pace, but it seems that Acting Director Homan is now kicking them into high gear, and employers need to be prepared for the increasingly likely event that ICE will come knocking at the door.

Fortunately, there are a number of proven strategies (outlined below) that employers can initiate right away to address the risks of an ICE worksite audit while also improving overall onboarding and hiring efficiency. The most important point to remember though is that ALL employers (across the US), regardless of industry, size, or employee population can be subjected to an ICE worksite audit – and it all begins with the Form I-9, that ubiquitous employment eligibility verification form which must be completed for all newly hired employees in the US.

(1) Compliance Awareness

How many times have you heard (from either a colleague or supervisor) that the I-9 is just “paperwork” or a “simple onboarding form” – a necessary bureaucratic process that’s akin to checking a box on a to-do list? Fortunately, I can’t see your hands right now, but I suspect that many HR and compliance managers out there suffer from this same problem on a daily basis. For sure, the I-9 is a rather benign-looking government form, and in that sense, it can be mistaken as simple paperwork. But in reality, it’s actually just one piece of a larger verification obligation for which employers can (and will) be held accountable.

So, your first strategy (and it can be a tough one) is to emphasize the importance of the I-9 form and the process in general to your colleagues and higher-ups. Ever since the enactment of the Immigration Reform and Control Act of 1986, employers have (in essence) been deputized to make sure they hire a legal workforce by completing the I-9 form in a timely and correct fashion. If you (as an employer) fail in any respect, you open yourself up to very significant fines and penalties – even if you don’t have any unauthorized employees in your workforce.

Need some hard numbers to demonstrate your risk? Consider this – ICE can assess a monetary penalty for each I-9 that has one or more substantive or uncorrected technical violations using a sliding scale often known as the “matrix”. The exact fine will depend upon your overall error percentage as well as other subjective factors including the size of your business, good faith, and seriousness of the violations (to name a few). Employers with 50% or more errors will be fined at the highest amount – typically $935 per I-9. And to make matters worse, the ICE fines have recently been adjusted so that you may now face a fine of up to $2,191 for any violations occurring after November 2, 2015.

Your total costs relating to I-9 forms may (in fact) be even higher, when you take into account the amount of time it takes to complete an I-9 and conduct overall program management. Click here to request a whitepaper discussing the I-9 “Total Cost of Ownership” analysis.

(2) Conduct a Self-Audit

What’s the absolute worst thing you can do in response to an I-9 problem? Pretend it doesn’t exist. And yet, many employers do just that by ignoring all of the warning signs (frequent HR turnover, history of bad I-9 practices, etc.) in the hopes that the government will never catch-on. Given ICE’s renewed attention on holding employers accountable, the better practice is to uncover I-9 errors and omissions now (long before an inspection) and take remedial steps to reduce (and in some cases, eliminate) the potential penalties and fines.

While conducting an I-9 self-audit can seem like a daunting task, there are a variety of strategies (and tools) available to ensure you don’t make matters worse. First and foremost, you should strongly consider working with experienced immigration counsel who can guide you in developing a remediation plan which addresses the most serious of violations first and ensures you follow all of the various rules for correcting past compliance mistakes.

At the same time, you can use a specialized electronic I-9 system which not only helps you identify all of the various errors or omissions (that may exist in your inventory of forms) but also provides a compliant (and automated) workflow for correcting those mistakes under the advice of counsel.

Need help in developing a plan for self-auditing? Register for our upcoming webinar here to learn about best practices for reviewing and fixing past compliance mistakes.

(3) Create an I-9 Policy Document

Experts have long recommended that employers create their own internal I-9 handbook, which specifically documents (in some detail) how I-9s forms will be completed and reviewed for accuracy. Having standard operating procedures not only shows good faith (in the event of government audit), it also serves as a training document – which is particularly important for large organizations where there is a possibility that a hiring manager might go rogue and “get creative” with your precious I-9 rules.

A good I-9 policy document will include the following essential details (some of which may vary from employer to employer):

  • How (and when) will section 1 be completed by the new hire?
  • Who is responsible for verifying identity and employment eligibility documents and completing section 2?
  • Do we make/retain copies of supporting documents for all new hires, or only as required by E-Verify?
  • What is our I-9 process for rehires (complete section 3 when allowable or always prepare a new I-9?)
  • How do we handle remote hires?
  • How do we document name changes?
  • Who is responsible for managing reverifications (when required)?

As with step #2 above, it’s always a good idea to work closely with your counsel in developing this document since the last thing you want to do is to systemize (and repeat) an I-9 practice which may not be compliant.

(4) Use an Electronic I-9 System to Ensure Compliance Moving Forward

Maintaining I-9 compliance across your organization can be a moving target, particularly in light of frequently changing compliance rules and the practical realities of employee turnover. In addition, the prospect of mandatory E-Verify (another Trump initiative) may soon force a significant number of organizations to take-on the added responsibilities and tasks associated with being an E-Verify-enrolled employer.

To get ahead of the curve, employers are increasingly using fully integrated electronic I-9 systems which enable the compliant (and efficient) completion of I-9s and E-Verify cases, without the hassle and expense of paper I-9 processing.  A well-designed system will not only ensure that I-9 errors are a thing of the past, but will also enforce your specific (and unique) I-9 compliance policies through a guided workflow and compliance alerts.

But remember, not all electronic I-9 software applications are created equally (and ICE does not certify any particular provider as compliant). Employers are thus well-advised to work closely with counsel in selecting a particular vendor to make sure it complies with all of the various (and often tricky) rules!

For more information on Form I-9 compliance (and the use of electronic I-9 systems), please feel free to contact us here.

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John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.