Form I-9 and E-Verify Misinformation Can Cost You

Nearly every day we run across well-meaning hiring managers who are unwittingly breaking the rules of I-9 compliance and E-Verify.  Sadly for these dedicated professionals, “I didn’t know that” will not be an effective defense when Immigration and Customs Enforcement (ICE) agents audit their hiring process.

The most common mistake hiring managers make is using the Form I-9 as a pre-hire screening tool.  This may be considered a discriminatory hiring practice. 

The Office of the Special Counsel for Immigration Related Unfair Employment Practices offers this advice:

In order to avoid any appearance of discrimination, verify work eligibility after you have decided to hire an individual and allow your employee three days to provide the documents.

• Let your employee choose which documents to present, as long as they appear to be reasonably genuine.

• Understand that there are many different documents, with different appearances, that your employee may present. You can find a list of these documents on the back of the Form I-9.

E-Verify also has very specific rules of use and an employer is bound by the Memorandum of Understanding they were required to sign when they registered as an E-Verify user.  Using E-Verify as a pre-screening tool is strictly forbidden. 

How Do You Avoid Discriminatory Hiring Practices?

Treat all people the same when you are announcing the job, taking applications, interviewing, offering the job, filling out the Form I-9, hiring, and firing.

• Avoid “citizens only” hiring policies or requirements that applicants have a particular immigration status, unless required by law.
• Give out the same job information over the telephone and use the same application forms for all applicants.
• Base your decisions about firing on job performance and/or behavior, not on appearance, language, name, or citizenship status of your employees.

Don’t depend on “I didn’t know that” as your defense.  Many hiring managers don’t know what they don’t know about I-9 compliance, E-Verify, and avoiding discriminatory practices during the hiring process.  Always consult an expert for advice and develop standard hiring practices.  Adhere to the same work eligibility policy for every person hired.

ICE Raids Restaurants – 29 People in Custody

The Baltimore Sun newspaper reports twenty-nine people were taken into custody in Maryland yesterday after ICE (Immigration and Customs Enforcement) agents raided two local restaurants, an office, and several houses. This is yet another example of how ICE is using immigration raids and worksite inspections to hold employers accountable for the hiring of eligible employees.

After the raids, Anne Arundel County Executive John R. Leopold was quoted as saying “In this economic climate, when people are hungry for employment, for employers to give incentives to illegal immigrants is egregious; it undercuts our spirit of fairness”.

ICE officials made it clear that the raids were carried out to ensure employers are held accountable for maintaining a legal workforce.  All employers should hear this message loud and clear.  ICE is committed to investigating employers concerning immigration laws and I 9 compliance.  Employers who are not completing the Form I-9 accurately and completely are at risk and in the event of an ICE inspection, will not be able to prove they have acted in good faith to avoid hiring illegal aliens.

For most employers, they seem to think that if they are not actively seeking to employ illegal help they are “safe” from this kind of ICE investigation.  Nothing could be further from the truth.  Last week, ICE issued 180 inspection notices, at random, to businesses in 3 southern states.

Every employer is accountable for verifying the work eligibility of every person they hire by correctly completing an I-9. This includes US citizens!  An estimated 80% of employers will fail an ICE audit due to paperwork violations, errors, omissions, and non-compliance with the employment verification process.

If you are an employer, you must take this seriously.  Performing a review of your I 9 compliance procedures is a vital step to ensuring your business won’t make the headlines the next time an ICE investigation makes front page news.

3rd Party I-9 Verification Audit – Will You Need One?

As the immigration debate rattles on and businesses are becoming more keenly aware of the government’s commitment to hold employers accountable for hiring only legal workers, many employers are discovering additional requirements appearing in contracts.

The Federal government and many states have started a trend by adding language concerning immigration compliance into their contracts.  Many companies are following suit, trying to protect themselves from the liability of having illegal workers employed by sub-contractors working on their job-sites.

The Form I-9 Requirement Clause

Many employers have been caught off guard upon discovering an “immigration clause” or “Form I-9 requirement clause” in a new contract.  These clauses often require either a statement from the sub-contractor attesting to their adherence to the immigration laws of the United States as it pertains to hiring legal workers, or a 3^rd party audit verification from a qualified auditor.

In some cases, a sub-contractor may be required to present their employees’ I 9 forms to an auditor for pre-approval before the employee is allowed to work on the job-site.  Some sub-contractors find themselves unable to comply with the requirements of the contract and consequently lose the job.

A 3^rd Party Audit Helps Satisfy the Requirements of a Contract

I-9 Okay is often called on to conduct a 3^rd party audit and verify employment eligibility when an employer needs to meet the requirements of a new contract.  It is most often a “mad dash” to get all of the forms in order, correct the errors and omissions on the I 9 forms, and verify the processes the employer is using.  Many times, the employer has failed to address the importance of the Form I-9 prior to signing the contract.

Our best advice is to review your Form I-9 processes regularly, schedule an annual review of your I 9 forms, and maintain a storage method that allows quick and accurate access to records.  Immigration requirements within contracts are becoming more and more common place and it is likely that your company will be required to have a 3^rd party audit in the near future.

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.