One employment related strategy that hasn’t changed with either the Obama or Trump administrations are workplace inspections to ensure immigration compliance by employers.
A recent article in the Wall Street Journal showed that workplace inspections and audits by U.S. Immigration and Customs Enforcement (ICE) are increasing to prevent employers from hiring those not eligible to work in the U.S.:
The article goes onto to show that ICE initiated 2,282 employer audits between Oct. 1, 2017 and May 4, 2018, increasing from 1,360 during all of fiscal 2017.
Form I-9 Basics
With this increased activity, let’s review the basics of the employer’s responsibilities with ensuring that employees meet the requirements of being eligible to work in the U.S:
- As required by the Immigration Reform and Control Act (IRCA) all new employees must complete a Form I-9 (section 1) no later than their first day of employment; the Form I-9 must be the most recent version provided by the U.S. Citizenship and Immigration Services (USCIS)
- Employees must provide acceptable identification/documentation to prove they can meet the requirements to work in the U.S.
- Employers must finish completing the Form I-9 (sections 2) within three days of the employee’s start date
- Employers must verify the employee’s identification/documentation meets compliance requirements;
Form I-9s must be retained and stored within compliance requirements
- Employers must re-verify (Form I-9 section 3) an employee’s identification/documentation within compliance requirements
- Employers must not discriminate during the Form I-9 process
- Employers must not hire a foreign national if they know the foreign national is not authorized to work in the U.S
Non-Compliance and Fines
If an employer is audited, Form I-9 paperwork errors can lead to civil fines from $216 to $2,156 per Form I-9 error. Additional fines and other criminal actions can occur for employers when they “knowingly” hire foreign nationals who are not eligible to work in the U.S.
Self-Auditing by Employers
To remain compliant, employers may want to conduct self-audits of their Form I-9s, especially during mergers and acquisitions. Having said that, there are strict requirements, especially around the process of conducting a self-audit that employers must follow. Employers should seek HR professionals and legal counsel experienced and trained in conducting self-audits to perform them on behalf of the employer.
Following the requirements of IRCA is mandatory for all employers. This is definitely an example of being organized and prepared in advance in case an audit/workplace inspection were to occur at your workplace.