Tag Archives: immigration

Form I-9 Audits Soared in Fiscal 2018 – Be Ready for More of the Same! (Part II)

As we mentioned in Part I of this post, this year the U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) will continue to focus on the use of Form I-9 audits and other strategies to encourage employers’ compliance with the Immigration Reform and Control Act of 1986 (IRCA).

How do employers know if Homeland Security Investigations (HSI) has initiated an audit or administrative inspection of their businesses? The inspection process begins with HSI serving a Notice of Inspection (NOI) on an employer compelling production of Forms I-9 and frequently other supporting documentation such as payroll reports, a list of current employees, articles of incorporation, and business licenses. Employers have at least three business days to produce the Forms I-9, after which HSI will conduct an inspection for compliance following ICE’s inspection process, give the employer 10 days to correct technical or procedural violations, and assess applicable fines and penalties.

Form I-9 best practice tips for employers include:

  • Establish a uniform written Form I-9 compliance policy and train staff accordingly.
  • Avoid discrimination claims by educating staff on the appropriate way to verify documents and treat all job applicants the same regardless of their citizenship or immigration status or their national origin.
  • Put in place a “tickler” system to notify HR staff of upcoming re-verifications for individuals that possess temporary employment authorization.
  • Establish a best practice method for proper cataloging and retention of Forms I­-9—separate former and active employees’ Forms I-9.
  • Keep Forms I-9 organized and separate from general personnel files. Establish a consistent policy regarding obtaining and retaining copies of verified documents.
  • Purge old Forms I-9s that are past the retention period on an annual basis (three years from date of hire or one year after termination, whichever is longer).
  • Conduct routine formalized self-audits and document each internal audit, preferably with guidance from legal counsel.
  • Call legal counsel immediately if you are served with a Notice of Inspection as the time to respond is short and it is critical to submit well-organized documents only after receiving legal advice.
  • Do not consent to an immediate inspection if agents arrive without warning – employers have three days to submit documents.
  • Only submit what is requested – nothing extra.
  • Do not let agents take original records without retaining copies.
  • Do not allow agents to talk with any employees or company officers before contacting legal counsel.
  • If the U.S. Department of Labor (DOL) agents arrive for an inspection of Forms I-9 without notice, decline the inspection. They will notify ICE.  (Note – if DOL agents seek to inspect wage and hour or FMLA records, decline the inspection and contact your legal counsel to schedule it at a convenient time.)
  • If U.S. Department of Justice Immigrant and Employee Rights Section (IER) agents arrive for an inspection of Forms I-9 without notice or deliver notice of intent to conduct a worksite enforcement audit, call legal counsel immediately to help coordinate a response. See also IER’s Employer Best Practices During Worksite Enforcement Audits.

Gail E. Farb

Form I-9 Audits Soared in Fiscal 2018 – Be Ready for More of the Same!

In 2019, U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) will continue to focus on the use of Form I-9 audits and civil fines to encourage employers’ compliance with the Immigration Reform and Control Act of 1986 (IRCA), along with criminal prosecution of employers who knowingly violate IRCA.

Last year ICE I-9 audits increased by 340 percent, resulting in 779 criminal arrests of employers; 1,525 administrative arrests of unauthorized employees; and more than $10.2 million in judicial fines, forfeitures, and restitutions. While most employers do not intentionally falsify Forms I-9 or knowingly accept fraudulent documents from employees, employers’ honest mistakes related to Forms I­9 can be costly. Civil fines, per form with one or more mistakes, range from $216 to $2,156. Thus, the same mistake made on each form could increase the fine exponentially. Moreover, do not forget that the U.S. Department of Justice Immigrant and Employee Rights Section (IER) also conducts Form I-9 audits to ensure that businesses are not engaging in citizenship discrimination.

Employers should protect their businesses by ensuring Form I-9 compliance programs are in place, up-to-date, and followed. For instance, employers should confirm they are using the current form, which has an August 31, 2019 expiration date, and properly following the instructions. Take care to avoid common Form I-9 mistakes, such as an employee’s failure to sign or date the form or the employer’s failure to complete Section 2 by the third business day after the date the employee begins employment. For guidance from ICE regarding Form I-9, visit “I-9 Central” or review ICE’s list of Common Mistakes and How to Avoid Them.

Also, employers should conduct routine Form I-9 internal audits and properly remedy identified errors in order to be legally compliant and to help avoid liability should ICE or IER select your company for an inspection. See Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

In the next couple of weeks, part II of this post will address the ICE inspection process.

Gail E. Farb

U.S. Department of Labor Boosts Penalties for Violating Labor and Employment Laws

On August 1, 2016, the Department of Labor increased civil money penalties for more than 60 kinds of violations of labor and employment laws, ranging across the board from wage-and-hour rules and occupational health standards to benefits requirements and immigration regulations. The Occupational Safety and Health Administration has seen the first increase to its civil penalties in 25 years, with maximum fines rising by nearly 80% to $12,471 for serious violations and $124,709 for willful or repeated violations. Other significant increases involve penalties for violations of the Immigration and Nationality Act’s prohibitions on displacing a U.S. worker with an H1B visa holder (rising from $35,000 to $50,758), as well as for violations of the Fair Labor Standards Act’s prohibitions on child labor (rising to $12,080 per violation, $54,910 if serious injury or death occurs, and $109,820 if child labor violations are willful or repeated resulting in serious injury of death). Penalties for willful violations of the FLSA’s wage and overtime provisions have also increased from $1,100 to $1,894. The increase in fines for willful FLSA violations comes on the heels of the new DOL rule extending overtime protections to nearly 4 million more workers, which could drive more wage-and-hour litigation. The DOL began applying these new, increased rates to penalties assessed after August 1, 2016.

The DOL’s announcement of its new rules to adjust civil penalties may be found here: https://www.dol.gov/newsroom/releases/opa/opa20160630.

Lindsey L. Dunn

For Employers with as Few as Four Employees, Mistakes in “Onboarding” Can Lead to U.S. Department of Justice Investigations

The EEOC is not the only federal agency charged with investigating and prosecuting employment discrimination in private-sector workplaces. The Department of Justice’s Office of Special Counsel (“OSC”) is charged with investigating and prosecuting citizenship discrimination and document abuse for employers with four or more employees, as well as national origin discrimination for employers that have between 4-14 employees, thereby encompassing smaller businesses that fall below the 15 employee threshold required for Title VII coverage. The authority for the OSC investigations is provided for in the Immigration and Nationality Act’s anti-retaliation provision. Businesses with at least four employees should ensure that the person completing I-9 paperwork on behalf of the company is properly trained, or risk an investigation by the OSC and the potential imposition of civil and criminal penalties.

For a summary of the OSC’s authority as compared to the EEOC see:

A summary of the acts prohibited by the INA can be found at:  https://www.justice.gov/crt/types-discrimination

Jennifer Fowler-Hermes