Employers warned of increase in immigration audits

Workplace investigations are a key part of the current administration's efforts to enforce immigration laws like the Immigration and Nationality Act (INA). According to the Department of Labor website, "Under the INA, employers may hire only persons who may legally work in the United States (i.e., citizens and nationals of the U.S.) and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility Verification Form (I-9)." The workplace investigation known as the I-9 audit plays an integral role in these efforts because the audit may lead to the discovery of basic deficient recordkeeping on part of the employer, as well as more severe violations for the discovery of illegal workers. Regardless of the scenario, attorney Patricia Nemeth of Detroit-based employment law firm Nemeth Burwell PC says audits often mean fines and lost work time for employers not keeping good records. "In 2011, the U.S. Immigration and Customs Enforcement Agency (ICE) personnel performed nearly 2,500 I-9 audits and collected over $10.4 million in administrative fines. It is expected that ICE will perform over 3,000 I-9 audits in 2012," said Nemeth. "These numbers should put employers on alert as to the importance of I-9 compliance." Employers must keep each I-9 on file for at least three years, or one year after employment ends, whichever is longer. In order to track employer compliance with the INA and Form I-9, ICE has conducted scheduled and random audits of employers' I-9 files. The general purpose of these audits is to detect known employment of unauthorized workers, but Nemeth cautioned that audits frequently uncover a number of ultimately expensive clerical errors. "Employers need to be wary of the potential penalties associated with common errors. Whether to penalize and the amount of any such penalty is left largely to the discretion of the specific auditor, but one single I-9 form containing multiple errors could result in thousands of dollars of penalties," explained Nemeth. "The risk of severe penalties is real and increases with the size of the employer and with an employer's lax approach to information contained on the I-9 form." There are increased monetary fines for substantive violations, as well as civil and criminal penalties. In addition, a business can be debarred from government contracts. To comply with I-9 requirements and reduce the likelihood of being fined, Nemeth suggests employers: * Conduct internal I-9 audits regularly. * Implement and follow a consistent policy for managing I-9 forms. * File all employee I-9 forms by year and keep the supporting documents in that file as well, separate from the personnel file (then in the event of an audit, the auditor will not have access to personnel files). * Insure the I-9 form is accurately completed within three days of the employee's start date. * Make sure the employee completes all portions of Section 1, including signature and date line; employers cannot fill out Section 1 of the form. Allow the employee a reasonable period of time to correct any errors or discrepancies made on the I-9 form. * Allow the employee to choose which documents to present to fulfill the identity or employment authorization requirement. Employers may not specify the documents. * Inspect the documents to make sure the document reasonably appears to be genuine, nothing more. The employer cannot accept expired documents and is allowed to terminate an employee who fails to produce the required documents. However, if the employer rejects a document, the employee should be allowed to present other documentation. * Correct a mistake on the I-9 form, as specified in the ICE Handbook, by drawing a "line through portions of the form that contain incorrect information, then enter the correct information...initial and date your correction." Do not use white out. Note: for those employees whose employment authorization expires, the employer must re-verify the employment authorization prior to its expiration. "Even though the I-9 form is only one page, there are a substantial number of errors which can occur for which the employer could be penalized. Preventative measures such as internal I-9 audits are necessary to correct mistakes well in advance of an actual audit," said Nemeth. "Employers should collaborate with legal counsel to establish the proper training of personnel and the implementation of proper procedures to prevent liability. Simple mistakes and common clerical errors can be extremely costly." Published: Mon, Oct 22, 2012

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