Did Employment Eligibility Verification Make Your List?

It’s nearly the end of February.  How are those New Year’s resolutions going for you?  Many of us have already abandoned our well intentioned resolve to eat healthier, exercise more, be more patient, read more, watch less TV, and so many other things that are deemed “good for us”.  The New Year is also often a time of reflection.

Looking back to 2009, it is apparent that times they are a-changin.  2009 was a year of significant government initiatives.  A new Form I-9, Employment Eligibility Verification was released with significant changes and limiting the types of acceptable documents a new hire can present.

U.S. Immigration and Customs Enforcement (ICE) issued record numbers of Notices of Inspection (NOIs) to employers across the country and collected millions of dollars in Form I-9 non-compliance fines.

The Social Security No-Match regulation was abandoned, leaving employers with little or no guidance of appropriate action to take when an employee’s Social Security number is questioned.

E-Verify was made mandatory for most federal contractors via new FAR regulations, effective on September 8, 2009.  Many states took immigration reform into their own hands and passed laws requiring employers to use E-Verify.

Employment Eligibility Verification for 2010 and Beyond…

2010 promises to be as challenging.  ICE continues to visit employers, issuing Notices of Inspection, and fining employers for Form I-9 non-compliance.  As in 2009, many employers are caught unaware of the financial risk associated with errors and omissions on the form.  Unfortunately, too many employers have a false sense of security concerning I 9 compliance.

Moving forward into 2010 and beyond, employers must make the “New Year’s Resolution” to focus on I 9 compliance.  The Form I-9 is the very best defense an employer has against allegations of knowingly hiring undocumented workers.  Make a commitment to a company policy of regular I 9 audits.  This is a great first step in achieving employment eligibility verification compliance.

I 9 Audit Results in $500,000 Fine – Are You Next?

On February 12, 2010, Immigration and Customs Enforcement (ICE) released a statement confirming that a Cincinnati company, Koch Foods paid $536,046 fine for administrative violations of U.S. Immigration laws.

The ICE Office of Investigations in Cincinnati conducted a worksite investigation of Koch Foods after receiving information from a concerned citizen alleging the company was employing illegal aliens at their poultry processing facility in the Cincinnati area.  In addition to other actions at the plant, ICE executed a search warrant at Koch’s corporate offices in Chicago, seizing relevant documents.

Now, you may be thinking, this doesn’t apply to my business; “I run a small company”, or “I don’t employ foreign workers”, or “ICE only goes after big companies with deep pockets”.   The reality is that every day, in every city in America, ICE agents are visiting employers and conducting I 9 audits.  In almost every case, employers are paying fines for administrative violations, even when they have never hired an illegal worker.

Employers are required to complete and retain a Form I-9, Employment Eligibility Verification for each individual they hire – this means EVERY PERSON YOU HIRE!  The Form I-9 must be completed regardless of an employee’s nationality.  Proper Form I 9 compliance requires the employer to verify every new hire’s identity and employment eligibility by reviewing certain documents.

“Employers have a responsibility to hire men and women who are authorized to work in the United States and fines are an important component of ensuring their compliance,” said Brian Moskowitz, Special Agent in Charge of ICE Office of Investigations in Michigan and Ohio.  “The significant fines leveled here represent ICE’s firm commitment to holding employers accountable”.

In April 2009, ICE implemented a new comprehensive strategy focusing its resources on I 9 audits and the investigation of employers’ employment eligibility verification procedures.  No employer is immune from this type of investigation and most will suffer devastating fines for errors and omissions that could be avoided with proper focus on I 9 compliance and the requirements of the Form I-9.

Form I 9 Compliance – Acceptable I 9 Documents

Accepting the correct documents from employees for purposes of the Form I-9 can be a confusing task.  Time after time, we find employers have not fulfilled their responsibility to the Employment Eligibility Verification I- 9 process because they have not accepted appropriate documents from their new employee.

In part, the confusion happens because many hiring managers don’t fully understand the reason for the I-9 form.  The purpose of the Form I-9 is to insure that every person hired by an employer is eligible to work in the United States.  The Employment Eligibility Verification or Form I-9 requires that the employer verify both the identity and work eligibility of the people they hire.

The I-9 form comes with a list of Acceptable Documents.  There are 3 lists:

• List A – Documents on List A are documents that prove both a person’s identity and their work authorization.  If an employee presents any document that is on List A, that is all that is required.  The employer should not ask to see any more documents.
• List B – Documents on List B are identity documents.  All of the documents on List B only prove someone’s identity.  If a new hire presents any item from List B the employer has only fulfilled half of their responsibility – they have verified the new hire’s identity but they still have the burden to verify work eligibility and will need to see a document from List C.
• List C – Documents on List C are work authorization documents.  All of the documents on List C prove a person’s eligibility to work in the United States.  In addition to a List C document the employer must also accept a List B identity document in order to fulfill the requirements of the Form I-9.

THE RULE – Accept either:

1 Document from List A

OR

1 Document from List B and 1 Document from List C

Be sure the documents you accept are actually on the List of Acceptable I 9 documents.  Recently, we have seen issues with employers accepting documents that are not part of the lists.  Firearms Carry Permits, Union Cards, Library Cards, are not on the List of Acceptable Documents and cannot be used as proof of work authorization for purposes of the I-9 form.

Employers must pay attention to the details of the Form I-9 in order to protect themselves from errors and omissions that will end up costing them when Immigration and Customs Enforcement (ICE) investigates.  Fines and penalties for I-9 document errors can cost an employer up to $1,100 per occurrence.  Other areas of concern are document fraud and discrimination penalties, some of which may land hiring managers and company executives in jail!

I 9 Compliance and Unconscious Incompetence

Author Steven Covey and others talk about the state of unconscious incompetence.  To me, that is just a fancy way to say “you don’t know what you don’t know”.  In the case of Form I 9 compliance, that is a dangerous and expensive state to be in.

Many, many employers fall into the category of not knowing what they don’t know about employment eligibility verification and the I-9 Form.  The purpose of the Form I-9, Employment Eligibility Verification is for an employer to fulfill their responsibility under the law to verify the identity and work eligibility of every person they hire.  When the I-9 is not completed properly, the form is often considered invalid or unenforceable.  The government takes this failure very seriously and penalizes employers severely for lack of compliance.

Employment Eligibility Verification Should Not Be Overlooked

I meet employers every single day who have no idea of the risk associated with the Form I-9. These employers are SHOCKED to learn about the huge financial penalties associated with non-compliance when government investigators conduct an I 9 audit.   Most of the employers I speak to are convinced that they have followed the law, that they are not actively hiring undocumented workers and are therefore safe from prosecution.  Unfortunately, that attitude may end up costing tens of thousands of dollars in fines when government agents conduct an I 9 audit.

Immigration and Customs Enforcement (ICE) is part of the Department of Homeland Security and is responsible for conducting the I 9 audit.  During an ICE audit, an employer’s I-9s are reviewed for what are termed technical/procedural violations and substantive violations.  It is rare to find an employer whose I-9s are not riddled with technical/procedural violations.  Most, if not all of these mistakes could be avoided with proper training and attention to detail by the person who is responsible for completion of the Form I-9.

What are the Fines for Form I-9 Violations?

Substantive violations are costly – $1,100 per occurrence.  It doesn’t take many substantive violations to add up to a huge judgment against an employer.  In our experience in conducting hundreds of 3^rd party audits, we find most substantive errors occur because the person completing the I-9 form was not fully trained and does not truly understand the purpose of the I-9.   Failing to secure signatures, inspect appropriate documents, and complete the process within the prescribed 3 business day time frame are the most common substantive errors we encounter.

Unconscious incompetence is not an excuse. Not knowing what you don’t know about I 9 compliance will not save you when Immigration and Customs Enforcement conducts an I 9 audit. It is every employer’s responsibility to seek education concerning I 9 compliance.  In the current business environment non-compliance with the Form I-9, Employment Eligibility Verification is a risk that can easily bankrupt an organization.