Immigration and Customs Enforcement Audit

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.

I-9 Document Inspections Surprise 1,000 Employers

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?

It’s All About Your Company IMAGE

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.

Most Employers Know Their Form I-9s Have Errors

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.

No-Match Letters are Back!

Everything Old is New Again

The Social Security Administration (SSA) has resumed the sending of Social Security No-Match letters to employers.  These “No-Match letters”, also known as Decentralized Correspondence (DECOR) letters have been around since 1979 but were suspended in 2009 after the controversial DHS “No Match Rule” was rescinded.

The SSA had been sending these letters to employers when information provided by the employer did not match SSA records.  Though the letter may be daunting, it is possible the name and SSN combination cannot be matched for a variety of reasons including misspellings, transposed numbers, name changes or incomplete information provided by the employer. Unfortunately, mismatches may also be due to the use of false SSNs or identity theft.

On April 6, 2011, SSA resumed sending no-match letters to employers when the names or social security numbers listed on a W-2 form do not match SSA records. The purpose in sending these letters is to inform the employer and employee there is a database discrepancy which may affect future Social Security benefits.

The DECOR letter makes no statement about an employee’s immigration status and cautions employers that the letter is not a basis in itself to take any adverse action such as suspending or firing the employee.  A FAQ on the SSA website provides advice for employers in dealing with the no-match letter.

The letter also includes a “Privacy Act” notice which informs the employer the SSA may share the information with the IRS for tax purposes or with the Department of Justice. In addition, the Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) published revised guidance regarding how employers can respond to no-match letters in November 2010.

Upon receipt of a No-Match letter, an employer should proceed cautiously with the assistance of qualified counsel.

Final Rule –- Finally Final!

On April 14, 2011, the U.S. Citizenship and Immigration Services (USCIS) announced a final rule that adopts the changes made to the Form I-9 process by the Department of Homeland Security in April 2009.  These changes to the Form I-9 went into effect in April 2009, including the rule that employers can no longer accept expired documents as proof of identity or work authorization when completing the form.

On December 17, 2008, DHS published an interim rule which included the following changes:

• Prohibits employers from accepting expired documents in Section 2;
• Removed Form I-688, “Temporary Resident Card,” and Forms I-688A and I-688B, “Employment Authorization Cards,” from the Lists of Acceptable Documents ;
• Added to List A the new U.S. passport card and  the temporary Form I-551, “Permanent Resident Card,” with a machine-readable immigrant visa;
• Added documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) to List A to more accurately reflect their status under the Compacts of Free Association;
• Amended the Form I-9 (Rev. 02/02/2009) to provide in Section 1 a separate box for noncitizen nationals.

The current version of the Form I-9 bears the expiration date of 8/31/12.

As is apparent with the new “old” rules and procedures, employers must stay vigilant to remain compliant with Form I-9 processes.  Implementing a comprehensive approach to I-9 compliance which includes formal training, written compliance policies, regular assessment audits, and the assistance of qualified specialists can help an employer navigate the complex process which is I-9 compliance.