Immigration enforcement is about to get a lot more aggressive come January 20. Worksite enforcement and general immigration compliance issues were a primary focus of the Trump administration’s campaign.
So, employers can expect an increase in the enforcement of immigration compliance, particularly ICE (Immigration & Customs Enforcement) I-9 audits and raids.
To that end, employers need to understand their obligations when it comes to federal immigration compliance.
I-9 Audits
An I-9 Audit is when an agent of the Department of Homeland Security (DHS), ICE, or Homeland Security Investigations (HSI) serves an employer with a Notice of Inspection (NOI)/subpoena. I have represented numerous employers in these audits.
This document requests that an employer produce Forms I-9 of all current and terminated employees (period of terminated employees varies) and relevant supporting documentation, if any retained, including copies of documents presented (such as, but not limited to: a passport, green card, employment authorization document, driver’s license, Social Security card, and/or birth certificate), E-Verify confirmations or other E-Verify paperwork.
What’s the point of this?
The I-9 Audit is so the federal government can make sure that employers are not employing persons not authorized to work in the United States.
Once the employer provides the documents, an ICE auditor inspects the I-9 documentation to determine whether the law was followed. This includes checking for substantive violations, such as incomplete, incorrect, or missing forms, and technical violations (minor errors), which an employer will be given 10 days to remedy and if remedied, no penalties will be assessed. Uncorrected violations can result in financial penalties. Unfair immigration-related practices or knowingly hiring undocumented workers can result in very high financial penalties, with potential for greater numbers when dealing with DOJ investigations.
How can employers be ready?
1️⃣ Employers can do an internal I-9 audit. In this manner, employers may correct any substantive errors found and avoid and/or mitigate the penalties for those errors prior to being the target of an audit.
2️⃣ Train staff on how to properly maintain I-9 forms and data.
3️⃣ Enroll in E-Verify, administered by SSA and USCIS, which streamlines employment eligibility verification.
4️⃣ Make sure all employees hired have a complete I-9 Form and avoid paying employees in cash.
Employers should not ignore the possibility of an I-9 Audit. They generally come out of nowhere and can be disruptive. It’s better to be ready versus trying to fix issues after the fact.