Protect Your Business from Enhanced Immigration Enforcement

By Anne E. Zachritz

I have previously written about proper I-9 procedures and compliance, but in light of the federal government’s enhanced immigration enforcement efforts in the Trump administration, I thought it would be beneficial for employers to address I-9 compliance and enforcement issues again.

Employers are required by federal immigration laws to verify employment eligibility of all employees, and fines are imposed for failing to comply. Fines range up to $20,000.00, and for employers who are found to have a “pattern or practice” of knowingly hiring ineligible workers, persons with knowledge may face criminal penalties, including prison time.

In my prior blog on I-9 procedures and compliance, I outlined the steps employers need to take to minimize the risk of liability in the event of an Immigrations and Customs Enforcement (ICE) audit as well as to avoid potential claims of discrimination. In an ICE audit, ICE typically reviews payroll records and rosters of current employees, employees who were terminated in the last year, and all employees hired in the last three years, even if they are no longer employed. The ICE audit seeks to discover whether there are missing Forms I-9. Compliance issues typically result from an employer’s failure to re-verify expiring “List A” documents and I-9 retention.

Many employers who properly comply with I-9 procedures when hiring later expose themselves to liability by failing to re-verify employees’ expiring “List A” documents. When employees provide “List A” documents, it is critical to calendar the expiration date of the employee’s “List A” document to make sure that you obtain updated documents prior to the expiration date. Liability also arises if there are missing Forms I-9.

In order to avoid liability, in addition to understanding and maintaining proper I-9 compliance requirements, employers should periodically self-conduct an I-9 audit. The scope of the audit should include: (1) a determination as to whether there are any Forms I-9 identifying now-expired “List A” documents; (2) a determination as to whether there are any Forms I-9 with expiring but un-docketed “List A” expiration dates; and (3) whether retention methods are proper. Forms I-9 can be retained in hard copies or electronically. There are certain procedures with which employers must comply regardless of the storage method. If your practice is to retain copies of employees’ documents, the scope of your self-audit should also include a determination that you have retained copies of documents for all employees. Maintaining copies of eligibility documents for only certain employees can expose your business to claims of discrimination. Lastly, in the course of a self-audit, employers should ensure that they have not retained Forms I-9 which they no longer are required to keep and purge those which are no longer required to be maintained.

The U.S. Customs and Immigration Service’s website provides significant guidance for employers on proper I-9 compliance. For more information about I-9 compliance or guidance with respect to a self-audit, please contact Anne Zachritz at (405) 272-9241 or aezachritz@andrewsdavis.com. You can read her prior blog on the matter here.


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