News

Published 10.19.2017

During a speech at the Heritage Foundation on October 17, 2017, Tom Homan, the Acting Director of the Immigration and Customs Enforcement agency (ICE), reportedly said he has instructed his agency to dramatically increase the number of I-9 audits targeting U.S. employers. According to news reports, Director Homan indicated that the scope of the investigations will be two-fold: to find employers who fail to properly comply with the I-9 Employment Eligibility Verification requirements thereby enabling undocumented workers, and also to arrest workers found to be undocumented as the result of the investigations.

The current administration’s approach, if implemented, will deviate from the strategies employed by prior administrations that either conducted company raids seeking the apprehension and removal of undocumented workers, or audited the employers’ I-9 records and processes and fined companies who failed to follow the law in hiring their workforce. If undocumented individuals were found as a result of a records audit on the employer, prior administrations would generally allow the employer a reasonable amount of time to replace the undocumented employees with individuals who were authorized to work, so as to minimize the risk of destabilizing company operations.

Based on Acting Director Homan’s reported statements, companies found to have undocumented workers under the new administration will have to contend both with potentially catastrophic fines for I-9 violations and with losing part of their workforce at the same time.

What can employers do to avoid a raid or an I-9 audit?
Unfortunately, there is not a lot employers can do to escape an investigation altogether. ICE initiates raids or I-9 audits based on its own independent investigations, but also based on information they receive from members in the community. The following are just a few examples of the triggers for an ICE raid or company audit:

• A business owner contacted ICE and complained that a competitor was hiring undocumented workers.
• A disgruntled employee, seeking retaliation against the employer, contacted ICE and reported the company was harboring undocumented workers.
• An employee, seeking to retaliate against a co-worker with whom he was having a personal conflict, contacted ICE to report that co-worker being undocumented, which led ICE to investigate the whole company instead.
• An undocumented employee was arrested for a traffic violation and referred to immigration officials; while being interviewed by immigration agents, the employee disclosed his employer, which prompted ICE to investigate if that particular company hired any other undocumented workers.

As seen in the examples above, employers have virtually no control over how or when ICE receives tips that can trigger an investigation, or whether ICE will actually act on those tips.

What can employers do to minimize or avoid liability in the event of an investigation?
The easiest way to avoid or minimize liability is to properly comply with the I-9 Employment Eligibility Verification process, as required by law. If employers follow the I-9 instructions and the correct requirements, they can avoid most or all of the penalties, even if some workers are found to be undocumented. It is also possible for employers to avoid or minimize financial penalties if they show due diligence and good faith in correcting their I-9 practices, if deficiencies are found.

Do not color outside the lines!
News of a potential increase in I-9 audits may lead some employers to over-document their employees in the I-9 process, or to reject valid documents with which they be unfamiliar or because the employee appears to be foreign. However, these practices may constitute employment discrimination based on national origin or immigration status, and employers may inadvertently reject employees who are otherwise authorized to work. This type of discrimination can be investigated by the Department of Justice or the Equal Employment Opportunity Commission (EEOC), depending on the case, and it may lead to additional fines and/or civil litigation.

Employers should follow the I-9 instructions and they should not over-document employees in the I-9 process. Employers must use the List of Acceptable Documents correctly and consistently for all employees, whether or not they are U.S. citizens and whether or not they are, or appear to be, foreign.

What can employers do to prepare for a potential audit?
=Reviewing the company’s I-9 practices is always a good place to start, to ensure the process has been followed correctly and that it is up to date. In the course of such a review, the HR representative should answer the following (non-exhaustive) list of questions:

• Is the company using the most recent I-9 form version?
• Does HR and the employee fill out the English version of form I-9 (unless in Puerto Rico)?
• Has HR reviewed the official I-9 government instructions recently?
• Is HR providing the employees a copy of the I-9 List of Acceptable Documents?
• Does HR allow new hires to choose which documents to present from the List of Acceptable Documents (as opposed to requesting specific documents from the list)?
• Does HR always ensure the employee fills out Section 1 of form I-9 no later than the first day of employment?
• Does HR always complete Section 2 of form I-9 no later than the employee’s third day on the job?
• Does HR always fill out Section 3 of form I-9 before the employee’s work authorization expires (if applicable)?

If you answered No to any of the questions above, then you may be following an incorrect I-9 process. If the company has not followed the correct requirements, then it is likely it would be found in violation of I-9 regulations in the event of an audit. If its I-9 records are not compliant, a company may be in violation even if its entire workforce is authorized to work.

If an employer discovers that it has used an incorrect I-9 verification process, it should take immediate steps to address and correct them going forward. Also, depending on the issues identified, the employer should assess whether an internal review of all of its I-9 records is warranted, depending on the extent of the problem.

If you have any questions about the I-9 Employment Eligibility Verification process or other immigration-related issues, do not hesitate to contact Raluca (Luca) Vais-Ottosen at (608) 252-9291 or rvo@dewittllp.com.