As the Trump administration takes swift action to change U.S. immigration policies, employers should expect increased work authorization enforcement actions. To that end, employers should review their employees’ I-9 forms for compliance in anticipation of potential I-9 audits.
I-9 audits are the most common form of immigration enforcement that the federal government undertakes. During the previous Trump administration, U.S. Immigration and Customs Enforcement (ICE) drastically increased the number of I-9 audits, completing almost 6,000 audits in FFY 2018 and 6,450 audits in FFY 2019. These figures are a significant increase from the 1,360 audits that ICE completed in FFY 2017. Moreover, ICE had intended to complete 15,000 I-9 audits in FFY 2020, but the COVID-19 pandemic disrupted those efforts.
Federal law mandates that all employers use I-9 forms to show that an employee is legally able to work in the U.S. Some employers continue to use paper I-9 forms, but many have turned to E-Verify, a voluntary web system that compares I-9 forms to other government records to confirm an employee’s authorization to work in the U.S.
Obtaining completed I-9 forms from each employee seems like a straightforward task. However, even seasoned compliance departments can make errors that could cost them in the event of an I-9 audit by the federal government. Some of the requirements for I-9 forms that most commonly result in errors include the following:
- Employees must fully complete and sign the I-9 forms.
- Employees must submit completed I-9 forms to the employer in a timely manner, or within three business days of their start date.
- Employees must provide certain personal identification documents to support their I-9 forms.
- Employers must retain both the forms and supporting documents for specific periods. For terminated employees, the retention period is three years after hire or one year after termination, whichever is later.
- Employers must use the most recent version of the I-9 form, which is the August 1, 2023, edition that shows an expiration date of either July 31, 2026, or May 31, 2027.
- Employers must reverify employees with expiring work authorization.
Based on historical records of the audits, some industries may be more likely to be subject to I-9 audits, such as the agriculture, construction, and manufacturing industries. Employers who use paper I-9 forms as opposed to E-Verify also may be more vulnerable to I-9 audits.
In response to the likelihood of increased I-9 audits over the next four years, employers should conduct internal I-9 audits with the assistance of counsel. An internal audit allows an employer to correct any errors and discard records that they no longer need to retain. Employers can make technical corrections on Sections 2 and 3 of the forms, so long as they initial and date the corrections. Likewise, employees can make technical corrections to Section 1 of their forms; again, they should initial and date any corrections made.
Furthermore, if employers discover any unauthorized workers during the internal audit process, they must take immediate action to correct the situation. Employers who knowingly employ unauthorized workers can be subject to steep fines and other penalties, including revocation of business license and incarceration in extreme cases. Penalties can be as high as $2,789 per violation on I-9 forms and as much as $27,000 for employing an unauthorized worker. Any actions that ICE deems to be “harboring undocumented workers” could result in up to ten years in prison and fines of up to $250,000.
ICE begins an I-9 audit by serving an employer with a “Notice of Inspection,” directing them to submit I-9 forms and supporting documents from current and former workers falling within the retention period. In most cases, employers have three business days to produce the documents. Additionally, employers must submit the names of all current employees, the most recent payroll records, and the names of contractors and staffing companies that they utilize.
Once they receive the requested documents, ICE can take a few months and as much as a year to review the documents. If ICE finds no problems with the I-9 forms and supporting documentation, the agency will issue a compliance letter to the employer. On the other hand, if ICE finds violations, it will issue various notices to the employer, depending on the type of violation involved.
HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.
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