As the first quarter of 2012 kicks off, this is a time for many companies to look back at 2011 to celebrate success, access opportunities, set goals and make plans for the next fiscal year.  Opportunities may include new markets, new products, increases in advertising or research, reorganization and budgeting. For some employees it will be business as usual while others will take an active role in moving the business forward.

It is reasonable to assume most companies make decisions about the future by first looking to the past. Time is spent reviewing reports, looking at sales history, identifying trends and making plans to improve.   Audits are performed to check compliance with government regulations.  Industry standards are scrutinized and procedures are fine tuned to ensure goals are met.  The past will help pave the path to the future for many organizations.

At this time of reflection and planning many businesses are assessing their hiring practices.  History shows us the last 3 years were years of change for government enforcement of employment eligibility verification requirements.  Since 2009, employers large and small have been targeted for document investigations by Immigration and Customs Enforcement (ICE) and most are found to be out of compliance with the requirements of the Form I-9, Employment Eligibility Verification.

Form I-9 Violations are Costly

Non-compliance with Form I-9 requirements cost employers on average $900 per employee.  Many companies have paid fines well over $100,000! In addition to civil money penalties assessed by the government, the companies audited spent hundreds of man-hours, paid huge legal fees and suffered the public relations nightmare of being the target of an immigration investigation.

What is very important for employers to know about this government enforcement strategy is ICE is performing document inspections – not work site raids. During the ICE investigation each one of your employee’s Forms I-9 will be scrutinized and ANY ERROR, no matter how seemingly insignificant, will be penalized with a fine.  Most of the companies audited and fined last year did not knowingly employ illegal workers; they had simply made mistakes while completing the Form I-9. Their fines were simply for I-9 errors!

Even more infuriating is that most of the I-9 mistakes made could have been avoided with proper training and attention to detail.  I-9 rules allow you to repair many mistakes prior to a government inspection but you must be cautious about making the corrections within the rules.

Form I-9 Compliance Action Steps

As you make plans for 2012 it is prudent to put I-9 compliance toward the top of the list.  Schedule an independent I-9 audit, get professional training from a qualified Form I-9 expert, carefully make corrections before your business is audited by ICE, and develop an I-9 compliance plan as a measure of your company’s good faith attempt to comply with the requirements of employment eligibility verification and the Form I-9.

If you have questions about an independent Form I-9 audit, contact I-9 Okay today…before its too late.

During July of 2009, Immigration and Customs Enforcement (ICE) initiated an I-9 investigation of Alyn Industries as part of an I-9 document audit initiative that is holding employers accountable for hiring practices. Alyn Industries (dba Electronic Source Company) manufactures printed circuit board assemblies for companies in the aerospace, military, medical, wireless and telecommunication industries. As of December 2010, they had 50 employees.

When Alyn submitted their Forms I-9 in response to the Notice of Inspection, ICE noted several deficiencies including Alyn’s failure to present Forms I-9 for 2 employees, failure to complete Section 1 for 1 employee and failure to complete Section 2 for 59 employees.  Based on the I-9 violations discovered during the audit, ICE issued a Notice of Intent to fine Alyn in the amount of $64,767.00.

When Alyn went to court they argued the fines were excessive because they are a small business, they had no previous violations and the company is a victim of poor economic conditions.  Alyn is a privately owned company that operates one worksite in California. Alyn also argued that they acted in good faith because after the ICE inspections they had enrolled in E-Verify and had instituted other I-9 compliance procedures.

In response to Alyn’s arguments, the judge reminded them the issue of good faith is based on whether the employer reasonably attempted to comply with its I-9 obligations prior to an ICE inspection. The important component of good faith depends on when the employer made the effort to comply.

In the end the judge ruled and Alyn Industries was ordered to pay $43,000 in civil money penalties as a result of Form I-9 violations.

Protecting your company from this type of action is a matter of proactively addressing I-9 issues through training, third-party audits, and compliance policies before an ICE inspection.  Once ICE issues a notice of inspection there is little you can do to mitigate the risk of fines.

Unfortunately many companies like Alyn Industries are doing too little too late to protect themselves against the penalties associated with a Form I-9 inspection.  Take action today. Contact I-9 Okay about Form I-9 training and independent I-9 audits.

It may be time to take another look at the Immigration and Customs Enforcement (ICE) IMAGE program.  IMAGE stands for “ICE Mutual Agreement between Government and Employer”.  IMAGE was created in 2006 as an initiative designed to encourage employer compliance and strengthen hiring practices in order to curtail the employment of unauthorized workers.

Based on its original design, IMAGE was heavily slanted in favor of the government and gave little to no incentive for employers to join the program.  The original program required an employer to submit to an ICE I-9 audit and be subject to the same penalty structure as non-IMAGE employers.  As of January 2011 only 115 of the over 10 million employers in the U.S. had joined the IMAGE program.

Recognizing the existing IMAGE program to be a dismal failure, the government revamped the program in 2011 and began an educational campaign to give employers information about the new and improved, kinder, gentler IMAGE program.

To be IMAGE eligible an employer is required to:

• Enroll in the E-Verify program;
• Establish a written employment eligibility verification policy that includes internal Form I-9 audits at least once per year; and
• Submit to an inspection of their Forms I-9.

ICE agrees to:

• Waive potential fines if substantive violations are discovered on fewer than 1/2 of the employers I-9s;
• Where more than 50% of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue the minimum fine of $110 per violation;
• Not conduct another Form I-9 inspection of the company for 2 years; and
• Provide information and training after the inspection.

So, should you consider the IMAGE program for your business?  Opening your doors to the government can be a scary prospect and it is certainly not a decision to be taken lightly.   It is a good idea though to follow the government’s advice even if you choose not to participate in the IMAGE program.

Having a written company compliance plan is smart business and may very well help establish that your company takes Form I-9 compliance and employment eligibility verification seriously.  Conducting an internal audit will help you establish your current level of compliance, correct some mistakes, and establish a training program to move forward with stronger procedures.  These are all best practices to protect your business and mitigate the risk penalties during an ICE investigation.

Whether or not you decide to join in a partnership with the Federal government it is absolutely appropriate for you to heed their advice when it comes to addressing your Form I-9 policies and procedures.

ICE served another round of inspections notices on November 4th. According to a statement released by the ICE department of public affairs:

“U.S. Immigration and Customs Enforcement (ICE) issued Notices of Inspection (NOIs) to various employers on Friday, Nov. 4. These inspections are designed to determine whether or not the businesses are violating U.S. employment laws by hiring unauthorized workers. The names and locations of the businesses will not be released at this time due to the ongoing nature of the inspections.”

This type of action by ICE has become a last quarter tradition.  It seems every year as the leaves fall off the trees and people begin thinking of turkey and cranberry sauce, ICE crashes the party by issuing inspection notices to hundreds of employers.  These Notices of Inspection are demands for I-9 document records and give an employer a measly 3 days to collect and turn-over all of their current employees’ records as well as all of the employees who have been terminated within the last 3 years.

Once ICE receives the Form I-9 records from the employer, the entire audit process can take a year or more to complete and culminate in a Notice of Intent to Fine which outlines every error and omission discovered by ICE during the review of the documents.  Each error that cannot be corrected by the employer will be assigned a fine amount.  Fines often total tens of thousands of dollars, sometimes employers pay in the millions!

This is a cautionary tale.  If your business did not receive a Notice of Inspection this month, count yourself lucky…but it is no time to relax!

If history is any indicator, ICE will be back in the spring, issuing more notices and your business may very well be on their list.  Taking a proactive approach to managing your I-9 compliance includes conducting a comprehensive audit.  An experienced independent auditor can help you identify areas of non-compliance and assist you in developing a plan to repair the costly mistakes that are inevitable in most organizations.  Statistically, when ICE investigates, they find errors on over 50% of the I-9s they audit and each one of those errors costs you money.

Don’t be fooled into thinking you are immune from a worksite  inspection because you are not hiring undocumented workers.  Remember, ICE will inspect your I-9 process to be sure you are complying with the rules and regulations when you complete the I-9 form for each new hire.  The inspection focuses on Form I-9 compliance, not on looking for illegal workers.

You can help protect your business from the huge fines associated with an I-9 inspection by conducting an internal audit of your own I99 records BEFORE you are visited by government agents.  Put this on your “To-Do List” and move it to the top.  Spring will be here before you know it and the next round of Notices of Inspection will be issued.  Will you be prepared or will you be sorry?

As an I-9 Audit Specialist, I remain constantly flabbergasted at the complete lack of attention HR professionals give the Form I-9.  Every day I speak to HR managers who tell me in no uncertain terms that their I-9s are fine and they have nothing to worry about.

My response -  you have a false sense of security and your confidence bubble will likely burst when your company is audited by ICE agents and fined thousands of dollars for non-compliance!

How will you explain non-compliance to your boss?  Will you keep your job?  How will you answer the inevitable questions about your lack of attention to this very important matter?  Is “I didn’t know” going to save your company from bankruptcy and you from losing your job?

I have spent a lot of time trying to figure out why companies are so resistant to seeking help with their I-9 procedures.

Form I-9 Excuses:

1. We only hire US citizens so we don’t have to worry about an immigration audit
2. We did our own I-9 audit 2 years ago and everything was fine then
3. We use E-verify so we are protected
4. I’ve been in HR for 20 years – I know what I am doing and don’t need your help!

If you hear your voice in any of these answers, here is the reality:

1. We only hire US citizens – The first thing to note is that unless you are a very small employer with less than 4 employees, you may be accused of discrimination.  It is unlawful for you to deny employment to an individual who is authorized to work in this country based on their citizenship or nationality.  It is important to remember that although the Form I-9 is regulated by Immigration and Customs Enforcement (ICE), it is required for every person you hire, regardless of nationality, and as such even companies that never hire immigrant workers are subject to the same fines and penalties as companies that do.  The I-9 is NOT an immigration form; it is an employment form that must be completed correctly and completely for EVERY PERSON YOU HIRE.
2. If you have audited your own I-9s you get an “A” for effort but the unfortunate reality is you may have made matters worse.  ICE estimates employers who conduct their own internal audits actually create more issues and problems than if they had not done the audit at all. The problem is most companies that perform their own audit do it with no additional training or advice concerning correct completion of the form or allowable corrections to the form.  Also, it is often the same person or department that originally completed the form checking their own work, therefore perpetuating mistakes they don’t even realize to be mistakes.  Kind of like the fox watching the hen house.
3. E-Verify is NOT a substitute for a correctly completed Form I-9.  In fact, during an audit, you may face additional scrutiny to be sure you are utilizing E-Verify correctly and following the rules.  E-Verify is giving employers a false sense of security when it comes to I-9 compliance.
4. The Form I-9 was developed in 1986 and has gone through many variations to end up with the form used today.  The list of acceptable documents has changed, the attestation of work eligibility has changed, the rules governing expired documents, acceptance of document receipts has changed, and many other changes have occurred over the last 25 years. It is rare that I meet someone who has taken any continuing education or formal training concerning the Form I-9.  As with employment law, tax law, OSHA, HIPPA, and other regulations, it is imperative to stay current and seek up-to-date education and training concerning I-9 requirements.  Resting on what you learned 20 years ago is a recipe for disaster.

The Form I-9 should not be this complicated.  It is a one page form that on the surface appears to be easy to complete and just one more thing to do during the on-boarding process.  Unfortunately, because it appears so simple it is rarely given the attention it requires.

Hiring managers are rarely given any formal training to complete the form, and more often than not when a company’s compliance is audited by Federal agents, huge fines are accessed for simple, avoidable errors and omissions.

Just this past week, ICE released information concerning Form I-9 audits conducted in Maine.  Read the news story about this blueberry farm that paid $118,000 in fines for failing to record the hire date on the I-9. This is a very common clerical mistake we find on at least 50% of the forms we inspect during an independent audit.  Can you imagine being penalized over $100,000 for failing to write down a date? It is happening all over this country during ICE I-9 document inspections.

Action to Take to get Form I-9 Compliant

First and foremost, enlist the help of an I-9 specialist to assist you in getting the right training and performing a comprehensive I-9 internal audit.  At I-9 Okay we help companies everyday discover what true compliance means, develop company policies for managing the I-9 process, provide expert training, and conduct comprehensive Form I-9 audits to assess current compliance and move forward toward 100% I-9 compliance.

Stop living with a false sense of security and take action to improve your company’s I-9 compliance today!

When Immigration and Customs Enforcement (ICE) visits your business and audits your compliance with the requirements of the Form I-9, will they think you acted in good faith to fulfill your responsibility to only hire workers who are eligible to work in the U.S.?

You’re probably thinking “Yes – of course we have acted in good faith to only hire legal workers”.  But will the government think so?  Probably not!   You may feel you are taking all of the steps required to be sure you are verifying the work eligibility of the people you hire, however, during an ICE investigation most employers discover their efforts are not sufficient.

The Form I-9, Employment Eligibility Verification is only one piece of the compliance puzzle.  And as I have discussed many times previously, the I-9 is a mine field of problems.  Simple errors, omissions, and mistakes cost employer tens of thousands of dollars in civil penalties for what ICE considers “technical/procedural violations”.

Yet time and time again, HR managers refuse to address these issues.  They ignore the importance of an independent Form I-9 audit to correct problems before an ICE audit.  Perhaps they feel an internal audit is part of their job…therefore ordering an independent 3rd party audit reflects poorly on their job performance.  The reality is, an independent and objective set of eyes often find errors and omissions that are easily overlooked.

An independent audit is a great first step in addressing I-9 compliance but it is only ONE step.  When the government asks the following questions, how will you answer?

• Do you only allow personnel with formal I-9 training to complete the form?
• Can you provide your written Company Compliance Plan?
• Can we see your Employment Eligibility Verification Policy?
• How do you avoid discriminatory hiring practices?
• How do you handle:
  1.  SS No Match Letters?
  2.  E-Verify?
  3.  SSNVS?

If you do not have the answers to these questions, it is likely the government will not think you have acted in good faith to fulfill your responsibility to hire only eligible workers.  It is time to take I-9 compliance seriously and get your compliance plan in place before ICE visits.  Visit www.I-9okay.com and download our FREE  Report with 10 Tips for Employer Compliance.  Get started today. Learn how to achieve good faith compliance in your business.

Thus far in 2011, seven more States have jumped on the E-Verify bandwagon, bringing the number of states requiring employers to use the government database to 17.  Many cities and local municipalities are requiring E-Verify.  There are several bills pending, including one at the Federal level, that would require the use of E-Verify by almost every U.S. employer.

This is a list of the 17 States currently requiring E-Verify.  The information was provided by the National Conference of State Legislatures.

As part of your employment eligibility verification compliance plan, you should have a mechanism in place to monitor your state’s E-Verify requirements so you ensure you remain fully compliant.  At the Federal level, employers found guilty of violation may, depending upon the number of offenses committed within a 3 year period, lose their business licenses.  Each individual state requiring E-Verify will have their own penalties in place for employers who fail to comply with mandatory E-Verify rules.  It often includes fines and debarment from bidding on or receiving State issued contracts.

E-Verify is not a substitute for the Form I-9.  The employer and employee must complete the Form I-9 within 3 business days of the first day of work for pay.  The employer then enters information from the I-9 form into E-Verify.  E-Verify compares the information provided against 455 million records in the Social Security Administration (SSA) database and 80 million records in the Department of Homeland Security’s (DHS) immigration databases. Results are usually returned within a few seconds.

If a query cannot be confirmed instantly by DHS, the employer may receive a tentative non-confirmation (TNC) and will be required to verify the information provided is accurate and give the employee the opportunity to correct any bad data. In order to resolve a TNC, the employee will be directed to visit a SSA office or call a toll-free number to speak to a Department of Homeland Security representative.

For employers who do not have resources to add one more “job” to the on-boarding process, the Department of Homeland Security allows an employer to utilize a Designated Employer Agent.  An Employer Agent is usually a private consultant who is an E-Verify specialist.  The employer contracts with the independent Designated Employer Agent who utilizes the E-Verify system on the employer’s behalf.  This is an excellent solution for employers who are hiring only a few new employees each year or who are working on Federal or State contracts and need E-Verify for that purpose.

Although E-Verify may seem overwhelming, it is here to stay.  There are options for employers to implement it into their organizations.  Contact I-9 Okay, LLC if you have questions concerning E-Verify or need an E-Verify Designated Employer Agent.

On Tuesday, Immigration and Customs Enforcement (ICE) issued another round of dreaded Notices of Inspection to 1,000 U.S. employers.  In their continuing effort to enforce every employer’s responsibility to verify the work eligibility of every person hired, ICE is conducting document inspections focused on the Form I-9.

According to ICE spokesperson Gillian Christensen,

“The inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructure and key resources.”

ICE inspection notices typically give an employer 3 business days to turn over their I-9s for all current employees and for employees who have been terminated within the last 3 years.  ICE auditors go through the forms with a fine tooth comb looking for mistakes and omissions for which the employer is heavily penalized.

The document inspections often lead to civil money penalties calculated in tens of thousands and sometimes millions of dollars…even when no illegal workers are present.  In addition to the fines assessed, these ICE audits may cost a company millions in lost productivity not to mention attorneys’ fees and the impact this type of inspection may have on the corporate image in the public’s eye.

You can be sure there are 1,000 HR managers and company executives who haven’t slept much since Tuesday when they were surprised by ICE.

At I-9 Okay we continue to urge employers to take a proactive approach to Form I-9 compliance.  Every day I meet HR managers and company executives who assure me they are focused on I-9 compliance but upon further review I discover large gaps in their procedures that are leaving them at risk in the event of an ICE investigation.

The I-9 form is the one piece of paper that if executed properly may protect you from knowingly hiring illegal workers.  It deserves your full attention!  More times than not, while conducting internal audits, we find mistakes and omissions that would cost an employer dearly during an ICE inspection.  This is particularly true with companies that have multiple people responsible for completion of the form, have had turn-over in the HR department, or who have not had any formal training concerning proper I-9 procedures.

The USCIS through the IMAGE program (ICE Mutual Agreement between Government and Employers) recommends some important Best Practices for employers to implement to ensure compliance with the requirements of the Form I-9.  The Best Practices include providing formal I-9 training for your staff, conducting internal audits, and developing a comprehensive compliance plan.

If you have not implemented these Best Practices, what are you waiting for?  ICE may surprise you next.  Are you ready?

The Immigration and Customs Enforcement Mutual Agreement between Government and Employers (IMAGE) is a voluntary partnership initiative between the U.S. government and employers designed to ensure compliance with employment eligibility verification rules and reduce unlawful employment.

To make the program more attractive to employers, ICE recently revamped IMAGE, simplifying program requirements and the participation process. Upon enrollment and commitment to their best employment practices, program participants are deemed “IMAGE Certified” – a distinction the Department of Homeland Security believes will become an industry standard.

If your organization is considering participating in this government program you may want to consider a few things first.

According to the ICE website, employers seeking to participate in IMAGE must agree to:

• Complete a self-assessment questionnaire;
• Enroll in E-Verify;
• Enroll in the Social Security Number Verification Service;
• Adhere to IMAGE Best Employment Practices;
• Undergo a Form I-9, Employment Eligibility Verification audit conducted by ICE; and
• Review and sign an official IMAGE partnership agreement with ICE.

If you do sign up for IMAGE, you are agreeing to allow ICE investigators to audit your company’s I-9s.  The auditors will go through your records with a fine tooth comb examining the I-9 records for ALL members of your workforce.

In an article published in Immigration Law Weekly, former AILA national president Charles Kuck observes,

“Essentially being enrolled in the IMAGE program is like inviting ICE into your HR department, and letting them screen every hire for you…It means you have or will be writing checks to the federal government, regardless of how good you believe your I-9 recordkeeping is.”

IMAGE cannot protect you against hiring individuals who are committing identity theft and there is no assurance from IMAGE that ICE will not investigate your company even if you become an IMAGE Certified employer.

Now don’t get me wrong, I think IMAGE has some good ideas to help employers protect their business by getting training, utilizing a qualified independent auditor, and enrolling in E-Verify and SSNVS.  The truth is however, any employer who takes employment eligibility verification seriously can implement IMAGE Best Employment Practices without involving the federal government and without risking allowing ICE agents free access to their HR department.

By utilizing qualified I-9 specialists or immigration attorneys, your company can implement a plan very similar to the IMAGE program without giving the ICE fox the keys to your HR hen house!   Joining IMAGE is a little like asking the IRS to audit your last 3 years tax returns just to see if they find any problems!   Are you really that confident in your I-9 processes?

We work with many employers to help get them IMAGE ready.  If you are considering the IMAGE program or would simply like to implement the IMAGE Best Practices, I-9 Okay can develop a program specifically for your company to meet or exceed the government’s standard for IMAGE.

75% of employers know their Form I-9s are not complete and correct.  How would you rate your company’s I-9 compliance?

Excellent – We’re ready for the Feds to audit us. In fact maybe we will send ICE an invitation!

Pretty Good - but we probably have some areas that need attention.

Not so Great – We need a lot of work but don’t really know where to start.

Don’t Even Go There! - We’re just hoping we never get audited.  If we do, it won’t be good!

Only a small percentage of employers fall into the Excellent Compliance category, even when they are making their best effort to comply. More times than not, employers fall into the Pretty Good and the Not so Great categories but due to lack of resources, budgets, and other factors, I-9 compliance is not at the top of the priority list.

We speak to companies on a weekly basis that don’t have I-9s because they “didn’t know”, “never heard of it”, think it is only for foreign workers and many other reasons!  Often these are grassroots companies that started small, grew rapidly and have had a “do-it-yourself” attitude about HR processes and on-boarding.  Trust me when I say that during an ICE investigation, “I didn’t know” is not an excuse for non-compliance.

While consulting with large employers, I find they often believe their I-9s have received the attention they demand because their HR staff is sophisticated and very well qualified. Unfortunately, this is often not the case.  In fact, we often find these sophisticated HR departments are perpetuating the same errors over and over again because they feel they can handle their training internally.  The old saying “you don’t know what you don’t know” is a dangerous position to be in when it comes to I-9 compliance.

Whether a large or small employer, you can assess your level of current I-9 compliance by addressing these questions:

1. Has your company had turnover in the HR position(s) and/or hiring managers responsible for processing I-9 Forms?
2. Has your hiring staff and HR department received formal training from an I-9 specialist concerning correct completion I-9 Forms, accepting documents, and anti-discrimination provisions?
3. Do you have a mechanism in place during the on–boarding process to insure the Form I-9 is completed within 3 days of hire? (This is the most common mistake employers make and is a substantive violation during an ICE investigation)
4. Have you recently gone through a merger, acquisition, or reorganization?
5. Is your on-boarding or hiring process more complex due to multiple locations, remote hiring, or utilizing temp agencies?
6. Have you documented your company’s Form I-9 processes and policies?
7. Do you hire a large volume of foreign workers, students, special placement, or minors?
8. Do you maintain a formal tickler system for follow-up and re-verification of expired work authorization documents?
9. Do you keep copies of the supporting documents presented by the employee during the I-9 process?  If so, how are they stored?
10. Do you bid for government contracts?
11. When was the last time you had a qualified I-9 specialist audit your compliance?

As you review these eleven questions, you may discover you are not as compliant as you thought!  The experts at I-9 Okay are uniquely qualified to assist you with every aspect of Form I-9 compliance, E-Verify, and Social Security Number Verifications.  We offer the most affordable way to train every person in your company who has I-9 responsibility.

Don’t be fooled!  ICE is actively looking for employers who are not complying with I-9 requirements.  Take a proactive approach to addressing your compliance today. It’s more affordable than you think.