I-9 Compliance – Audits & Due Diligence
Every organization with even one employee is required to comply with the I-9 regulations. The I-9 is a federal government compliance form that must be completed in part by the employee and in part by the employer establishing the employee is authorized to work in the U.S. Even if the employer knows for a fact that all employees are U.S. citizens, this form is still required to be completed for each employee. The employer must complete the form based on examination of the employee’s original documents.
Not properly completing and maintaining I-9 forms can subject the organization to large fines and even significant jail time. At the same time, every employer walks a fine line between I9 compliance and being accused of discrimination based on national origin. It is now very important for every employer of any type or size to obtain proper counsel regarding I-9 compliance.
The employer sanctions rules were passed by Congress as part of the Immigration Reform and Control Act of 1986 (IRCA). For years the government didn’t really enforce the rules, as it allowed employers time to become educated about compliance. After 9/11 the government focused especially on organizations in fields that may be targets for terrorists such as power plants. Now they have expanded enforcement of I9 compliance across the spectrum. Every employer should be careful to maintain itself in full compliance.
Is your company ready?
Your first step is to contact us to talk about your situation. We will discuss with you a manageable scope for an internal audit of your I9’s, if you choose. Internal audits assess the status of an employer’s I-9’s and make corrections as needed. Doing so is an important action step to demonstrate good faith compliance. It must be done carefully, or it may result in discrimination even if unintentional. For example, a sample audit can be done; a complete audit of every I9 is not always practical for employers with large numbers of employees. However, you cannot choose the sample based on those you believe have immigration documents or aren’t U.S. citizens. The government has instructed that doing so is discrimination. There are, however, acceptable ways to select the sample, and we will discuss that with you. We will then advise you of errors found on the I-9’s audited, and conduct a training for the people in your specific organization that are handling the I9’s. After that, regular internal audits will be faster and easier to ensure you remain compliant. Should you receive a subpoena from the government for your I-9’s, DO NOT WAIT; contact an experienced attorney right away.
Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) has stated that its express, “objective is to create a “reasonable expectation among employers that they will be audited.” Their “vision” is to, “create a culture of compliance.”
Keep in mind the best government audit defense is a good offense. Be ready. Note that ICE gives favorable consideration to corrections made prior to receiving a subpoena. Each error can result in heavy penalties — even if all hires were in fact authorized to work in the U.S.
Questions or Concerns About What To Do?
Peterson Russell Kelly PLLC has an I-9 team consisting of experienced employment law and immigration/I-9 compliance attorneys who are ready to help your business through an internal review of your I-9’s, as well as to assist you in the event of a government compliance action.
PRK attorney contacts for this area: