Small and medium-sized businesses should be aware that inspections of Form I-9, Employment Eligibility Verification, are on the rise. Penalties resulting from inspections where Form I-9 violations are found can be significant. Employers who conduct self-audits and correct procedural or form deficiencies can be prepared and potentially avoid heavy fines.
Form I-9 Inspection
Governmental inspections of a business’ Forms I-9 may be conducted by officials from or employees of the Department of Homeland Security Immigration Customs and Enforcement (ICE), the Department of Justice, or the Department of Labor. Employers are generally given three business days’ notice of an inspection.
The Notice of Inspection (NOI) requires the employer to produce I-9 forms for all its employees and former employees for whom retention requirements were still in effect. Officials generally choose where they will conduct a Form I-9 inspection. For example, officials may ask that an employer bring Forms I-9 to an ICE field office. Sometimes, employers may arrange for an inspection at the location where the forms are stored.
Investigators will then inspect the I-9 forms to determine violations. Violations of a lesser nature, such as technical violations, may include a failure from the employer or employee to fill out all required information. The more serious offenses, referred to as substantive violations, include such failures as not verifying or reviewing the required document presented by the employee, or failing to fill out an I-9 for an employee. They have found that 76 out of every 100 Forms I-9 have errors with paperwork violations costing $110 to $1,100 for each individual.
Accordingly, employers should ensure that proper I-9 procedures are in place to avoid penalties.
Guidance for Conducting a Form I-9 Self- Audit
On December 17, 2015 ICE and the Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) published guidance for employers who seek to perform their own internal Form I-9 audits. Their guidance is intended to help employers structure and implement self- audits in a manner consistent with employer sanctions and anti-discrimination provisions of the Immigration and Nationality Act (INA).
The guidance is very specific, answers most questions, and spells out how to correct errors and omissions. To view or download a copy of the Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits, Click Here.
After conducting a self-audit it may be helpful to determine your penalty exposure. Add up the number of missing forms and major problems to calculate your exposure. Missing forms are generally penalized at around $1100 per form for the record-keeping violation plus around $1500 per person for a knowing employment violation. (ICE assumes that persons without forms are illegal.) Major problems usually result in fines of between $800 and $1000 per form. If your exposure is significant, consider a training seminar for staff completing I-9 forms.
For additional guidance, see Self-Auditing Your I-9 Forms? Know These Rules, from the Society for Human Resource Management.