It’s Time to Take Form I-9 Compliance Seriously

A Subway franchisee in North Carolina with 11 employees is probably wishing he had proper I-9 procedures in place before ICE visited him and cost him a lengthy legal battle and over $27,000 in fines.  Macy’s department stores in Florida are licking their wounds after answering allegations of document abuse and paying stiff penalties concerning the Form I-9.  Chipotle is reeling after its Minneapolis restaurants were audited by ICE and is now facing more scrutiny in Virginia and DC.  As a result of the audit they have fired hundreds of employees and are facing a public relations nightmare.

How Will Your Company Fair When ICE Comes Knocking?

Immigration and Customs Enforcement (ICE) is on a mission and your business is in their crosshairs.  This week, ICE issued 1000 Notices of Inspection to companies just like yours requesting Form I-9 documentation for all current employees plus the I-9 records of all employees terminated within the last 3 years.

Statistically, over 80% of those employers will pay civil money penalties for errors and omissions on the I-9.  An ICE document inspection is a full audit of your company’s I-9 documents and EVERYTHING counts!  It is not enough to have a Form I-9 on file for all employees.  It must be 100% complete and accurate or you will pay significant fines.  The more employees you have, the higher your risk.

It is a Costly Misconception that ICE is Only Looking for Illegal Workers

The above referenced Subway in North Carolina paid fines averaging over $2000 per employee.  If your company has 100 employees, you could be facing fines of a quarter of a million dollars or more!  Are you willing and/or able to take that chance?

As a proactive, prudent employer you should address your Form I-9 processes today.  Focus on Best Practices such as:

• Train hiring managers to properly complete the Form I-9
• Develop a Company Compliance Plan concerning I-9 procedures
• Conduct an independent 3^rd party audit to assess your risk BEFORE ICE visits

Aggressive worksite enforcement by ICE is here to stay and there is no excuse for ignoring your responsibility to the Form I-9 any longer.  Taking affordable proactive steps now can save you time, money, and your corporate image in the future.

Employers Bear the Burden of Hiring a Legal Workforce

Chipotle and other restaurants are in the crosshairs of Immigration and Customs Enforcement (ICE).  To date, Chipotle has been audited in Minnesota and as reported by the Wall Street Journal, will also have restaurants in Virginia and Washington,D.C., undergo a Form I-9 document inspection by ICE auditors.

The Huffington Post invites readers to comment on the article posted.  After reviewing readers’ comments, it is clear the general public does not understand the employer’s responsibility to the Form I-9 and the employer’s struggle to balance the anti-discrimination provisions of the law with the need to hire only authorized workers.

It seems the public believes when an employer, as in the case of Chipotle, is investigated by ICE and is found to have employees with “suspect documents”, the employer has purposefully and knowingly hired illegal workers because they are available, cheap labor. Unfortunately, the employer is considered “guilty” in the court of public opinion because of the appearance of impropriety.

At this point in the investigation and with the information that has been released, it is impossible to conclude what role Chipotle played in hiring employee’s who presented “suspect documents”.

The employer’s burden is “simple” at first glance. The law requires every employer to complete the Form I-9, Employment Eligibility Verification on the first day the employee starts to work.  The I-9 requires the employee to attest, under penalty of felony perjury, they are authorized to work in the U.S.  The employer then must examine certain documents provided by the employee to verify the new hire’s identity and work eligibility.  Sounds simple right?

Unfortunately, the Form I-9 process was developed in 1986 and has changed very little since its inception.  The ability to produce fraudulent or counterfeit documents with today’s sophisticated technology has created a terrible “Catch 22″ for employers.  The law does not require an employer to be a document expert and the employer cannot be expected to be able to identify “quality” counterfeit documents when hiring individuals who present fake documents.

The law also protects employees from unlawful discrimination by limiting the employer’s ability to ask for additional documentation in most circumstances. New tools such as E-Verify are available but they too have issues and limitations.

The bottom line is the employer may have done all of the right things under the law and still end up hiring illegal workers. Hiring authorized workers is an extremely complex, complicated matter.  It is unfortunate that the general public only sees one aspect of the process and is all too quick to rush to judgment based on media reports and their perception of the problem.

Form I-9 compliance a priority for Obama Administration

The Wall Street Journal is reporting Immigration and Customs Enforcement (ICE) officials announced they are ramping up their existing crackdowns on employers who hire illegal workers by creating a new employment compliance inspection center in Virginia. The new office will scrutinize Form I-9 employee data from employers selected for I-9 audits and immigration investigations.

During the past fiscal year, ICE conducted audits of more than 2,740 companies — nearly twice as many as it completed the year before. In the wake of these audits, Immigration officials handed companies a record-breaking $7 million in civil fines. According to ICE officials, Form I-9 audits are “one of the most powerful tools the federal government has to ensure that businesses are complying” with the law.

“Ultimately, it is in a company’s best financial interest to proactively comply with the law now rather than to face potential fines or criminal prosecution for noncompliance in the future,” an ICE spokeswoman said.

The Virginia center is expected to have 15 auditors who will support ICE’s immigration enforcement strategy field audits. According to John Morton, chief of U.S. Immigration and Customs Enforcement the new center will “address a need to conduct audits even of the largest employers with a very large number of employees.”

Learn why it is a good strategy to have an independent 3rd party audit of your Forms I-9 procedures and policies before ICE comes knocking at your door.

Independent Form I-9 Audits Reduce Risk

Since January 2009, under the directive of the current administration, ICE (Immigration and Customs Enforcement) has audited more than 3,200 employers, debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions – more than the total amount of audits and debarrments issued during the entire previous administration. There is no doubt ICE will continue aggressive enforcement activities against employers in 2011.

The focus of this enforcement activity is concentrated on the Form I-9, Employment Eligibility Verification, and whether or not an employer has properly completed the I-9 for each employee hired. This aggressive strategy puts every employer at risk of a government inspection and the potential to pay thousands of dollars in fines and penalties, regardless of the immigration status of their employees. Employers must be crystal clear – this is NOT about finding illegal workers, this enforcement is about auditing an employer’s compliance with the requirements of the Form I-9.

Think Your Business is Form I-9 Compliant?

The simple fact is most employers are not fully compliant with Form I-9 requirements and upon government inspection will be fined, on average over $800 per employee! You are probably thinking – this could never happen to my company. We have reviewed our Forms I-9 and have even conducted our own internal audit.

Unfortunately, this strategy is rarely sufficient. According to ICE, companies that audit their own Forms I-9 are not significantly reducing their potential fines and many times may make matters worse, because much of this audit work is performed by the same HR managers that made the previous errors.

External Form I-9 Audits are Recommended by ICE

Internal audits often reveal significant errors made by hiring managers and it’s only natural to want to hide or minimize these mistakes in order to save face and retain one’s job. Unfortunately, ICE typically regards these cover-ups as serious matters which may lead to charges of falsification, perjury, and document tampering. ICE representatives have made it clear that self-audits typically result in more difficult situations for the employer than if an audit is done by a qualified, experienced independent auditor.

Performing an internal self audit of the Form I-9 may very well increase your risk, rather than decrease the potential for penalties and fines. ICE advises it is a best practice to complete an annual audit of your I-9s using an experienced independent auditor. Any other type of audit may leave an organization at risk or in worse condition than before the audit.

Make 2011 the year you reduce your company’s liability. Start with a Form I-9 audit performed by a qualified expert and develop an Employment Eligibility Verification compliance plan to ensure 100% compliance going forward. Remember, ICE isn’t looking for illegal workers, they are looking at your Form I-9 paperwork and even small, “innocent” mistakes will cost you!

Chipotle’s Form I-9 Compliance Nightmare

Last week, amidst rumors of a Forms I-9 audit by the U.S. Immigration and Customs Enforcement (ICE), news sources are reporting that at least 50 employees were fired at several Minnesota-area Chipotle restaurants.

The following statement was released from Chipotle headquarters:

“Chipotle is fully cooperating with Immigration and Customs Enforcement (ICE) officials in connection with a document request they have made.”

ICE declined to give a statement regarding a possible I-9 audit of the chain.

While details of the Chipotle firings have been scarce, ALL business owners and managers need to pay attention to the hot button issue of Form I-9 compliance. Over the past 2 years, we’ve seen many high-profile retail outlets, as well as small independent businesses, slapped with large fines for Form I-9 compliance violations.

Given the political climate and the ramping up of ICE audit activity, we can expect this to be a familiar pattern into the next year.  The Obama Administration is cracking down on businesses looking to “get around” immigration rules of employment eligibility verification.

Be proactive – make 2011 the year you take action to make sure your company implements a Form I-9 Compliance Plan.