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The Dog Days of Summer Bring a Fresh Round of I-9 Audits; Five Strategies to Cope

As much of the nation continues to swelter through searing hot temperatures, employers across the US have been experiencing a different kind of heat: the unmistakable return of the Form I-9 audit surge. Whether through news reports, attorney sightings, or direct audit experience, we’ve seen a significant uptick in the number of Form I-9 Notices of Inspection as Immigration and Customs Enforcement (ICE) ramps up its worksite enforcement efforts in the summer of 2019. Earlier today, ICE confirmed in a news conference that the agency had delivered more than 3,000 notices to businesses nationwide.

To a degree, employers (and HR managers) have been expecting these visits for some time, particularly in light of the nationwide immigration raids ordered by President Trump a couple of weeks ago. While the large-scale round-up of undocumented individuals and families has not yet materialized under the President’s latest directive, ICE continues to lead the charge against employers that fail to follow (or properly observe) the rules for verifying authorization to work in the US.

Last year, ICE far exceeded its audit numbers through several high-profile sweeps across the country, culminating in the largest ever fiscal year total of worksite investigations and related activity. In explaining the justification for the audits, ICE representatives often focus on the notion of “creating a culture of compliance” while stressing that all organizations, regardless of size, industry, or workforce must follow the I-9 rules.

So what exactly does “creating a culture of compliance” in the I-9 world entail, and how does an employer get started? To a large degree, it’s about bringing I-9 compliance “out into the open” through a concerted (and coordinated) organizational effort. Below are five strategies that have been successfully implemented by some of the nation’s top employers (who know all about the challenges of I-9 compliance):

1. Self-evaluation

Sometimes, the most difficult I-9 task for an organization is conducting a self-evaluation (more commonly referred to as an I-9 self-audit) in order to uncover all of those hidden problems. Whether it’s a lack of knowledge or fear of the unknown, there’s a natural inclination to sweep those I-9 problems under the proverbial rug, where they will hopefully stay undiscovered until they fade into dust.

While this may sound like an attractive (and not entirely unreasonable) path to pursue, employers must remember that they are strictly liable for any errors on those I-9 forms, regardless of whether they discover them or not. More importantly, many of those mistakes can actually be corrected (or at the very least mitigated) through a self-audit and remediation project.

Want to learn how to start an I-9 self-evaluation project? Check out the Webinar: I-9 Self-Auditing 101 – Detecting and Fixing Past I-9 Mistakes.

2. Executive Awareness

Years ago, I gave a presentation at SHRM where I demonstrated (through some tricky Q&A roleplaying) that every employer has an I-9 problem. And while many of the HR in the room completely understood, their supervisors (and above) remained largely in the dark regarding the potential liability if everything goes wrong.

This needs to change, preferably from the top. Time and time again, employers have been held accountable for I-9 and immigration violations (often at the highest levels), despite a company’s efforts to insulate (or protect) the leadership. In 2017, ICE announced the largest ever immigration worksite fine (a whopping $95 million) against an employer who had implemented policies to keep management “willfully blind” of the immigration violations occurring on the ground. Needless to say, this was not a winning strategy for the company…

While explaining I-9 compliance can be about as much fun as completing the form, we have found that numbers (and dollar signs) speak a lot louder than words. One of the best ways to get your executive’s attention is to outline (in all of its gory detail) the potential fines which may be assessed if I-9 compliance is not taken seriously. Nine times out of ten, your I-9 overhaul project will quickly gain executive support.

Want to build the business case for I-9 compliance? Download our Whitepaper: The Total Cost Of Ownership: Achieve Perfect I-9 Compliance to better understand the process of a TCO evaluation as it relates to I-9 and E-Verify compliance, and learn about the significant, and surprising, financial impact of implementing and I-9 and E-Verify compliance solution.

3. Training

A culture of compliance is impossible without getting all of the required stakeholders involved. In the I-9 compliance world, this means everyone who touches the form. Whether that includes recruiters, office managers, hiring reps, or just HR, you’ll want to have a carefully constructed training plan that outlines the do’s and don’ts of the Form I-9 process.

Training on I-9 and E-Verify can be accomplished in a variety of ways, including initial boot camp sessions, quarterly updates, and special focus programs that tackle a unique (and specialized) area of compliance. Many employers also conduct hands-on training through regular internal audits of the I-9 process and frequent feedback to all of those involved.

Need a quick refresher on all things Form I-9 and E-Verify? Check out our eBook: Form I-9 and E-Verify For Dummies, then watch a brief video summarizing the Form I-9 and E-Verify basics.

4. Standard Operating Procedures     

Once you’ve spent some time thinking (and re-evaluating) your I-9 and E-Verify compliance program and training efforts, it’s time to get it in writing – preferably through an I-9 policy or so-called standard operating procedure (SOP) document. This is where you will define (in as much detail as you can) your organization’s unique I-9 workflow, policies, and practices.

For example, do you make copies of all of your supporting documents (e.g., driver’s license and social security card), or just those required by E-Verify? What is the process for onboarding a rehire – new I-9 or Section 3 where possible? An I-9 SOP is also a great place to define any specific timelines or special practices that you observe, such as managing remote hires.

One parting note of caution when it comes to an I-9 SOP (or policy): it should be carefully vetted by counsel to ensure you are applying the correct (and uniform) application of Form I-9 and E-Verify rules.

Need assistance getting started? Download our free sample I-9 policy starter kit.

5. Smart and Compliant Automation

Last, but certainly not least, employers must recognize that no amount of training, auditing, or documentation can prevent an occasional lapse in compliance – especially for an area which can be so confusing and complex. Even the most disciplined employer can easily make I-9 mistakes or fall victim to competing priorities and HR turnover.

Fortunately, employers can avail themselves of electronic I-9 and E-Verify software platforms which include I-9 error-checking, flexible workflows, and built-in policy applications that enforce your I-9 rules. A well-designed application will also integrate with your onboarding application, facilitate E-Verify submissions, and help you discover (and correct) past I-9 compliance mistakes.

If you’re in the market for I-9 software, there are two very important rules to remember: (1) ICE does not vet or approve electronic I-9 systems – meaning you have to do your own due diligence; and (2) the system MUST meet strict regulatory standards, including various recordkeeping and safeguarding controls. Many systems on the market today do not follow these protocols, and so it’s imperative that you choose wisely and work with counsel when possible.

If you’d like to learn more about the Guardian Electronic I-9 and E-Verify software, which was designed by immigration attorneys, please visit www.lawlogix.com/guardian.


About John Fay

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 President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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