How an I-9 Self Audit Will Save you Money. The I-9 Form, the Risks, and Protecting your Company

Transcription

1 How an I-9 Self Audit Will Save you Money The I-9 Form, the Risks, and Protecting your Company

2 The I-9 Employment Verification Form The purpose of the I-9 is to verify that the employees your company hires are authorized to work in the United States. The I-9 is a 2 page form and is one of the most difficult forms to complete correctly. All employers are required to complete and maintain I-9 forms on every employee hired since 1986.

3 The I-9 Form (cont.) Page 1, Part 1 must be completed on the first day of employment by the new hire. But it remains the employer s responsibility to ensure the form is completed correctly.

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5 The I-9 Form (cont.) Section 2 must be completed by the employer by the 3 rd day of employment. Documents verifying the ability to work in the US must be presented to the employer. Documents must be original. Common documents are Passports, Permanent Resident Cards, Employment Authorization Documents or US Drivers Licenses and Social Security cards

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7 I-9 Form Link The following is the link to the I-9 form including instructions. These instructions must be given with the form each time it is completed. es/files/form/i-9.pdf

8 I-9 Obligations and Liabilities Apply to All Employers All employers have I-9 compliance obligations regardless of whether they employ foreign nationals. An employer may be fined even if it has never had an unauthorized worker employed. Penalties are both civil and criminal and fines can be in the high five to six figure range.

9 Civil Penalties First Offense Second Offense Third Offense Failing to comply with Form I-9 requirements (e.g. mistakes in filling out form) $110 to $1,100 each form $110 to $1,100 each form $110 to $1,100 each form Committing or participating in document fraud (e.g. knowingly accepting fraudulent documents) $375 to $3,200 each worker $3,200 to $6,500 each worker $3,200 to $6,500 each worker Committing document abuse (e.g. accepting incorrect documents) $110 to $1,100 per violation $110 to $1,100 per violation $110 to $1,100 per violation

10 Civil Penalties (cont.) Unlawful discrimination against an employment-authorized individual in hiring, firing, or recruitment or referral for a fee (e.g. telling hires what documents to present, not accepting listed documents) 1 st violation $375 to $3,200 per violation. 2 nd violation $3,200 to $6,500 per violation. 3 rd violation $4,300 to $16,000 per violation Knowingly engaging in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens. Up to $3,000 for each unauthorized alien. Up to 6 months in prison for pattern or practice of knowing violations. USCIS Web Site

11 Penalties (cont.) Penalties are not just for hiring unauthorized workers apply to paperwork mistakes. The most common penalty is for failing to complete I-9 forms correctly. Fines are also given for accepting false documents and discrimination (e.g. requesting specific documents rather than allowing employee choice from list).

12 ICE Enforcement Activity Recent fines have been significant $2 million to ABC Professional Services -- July of 2012 $625,000 to Infinite Visions, LLC -- July 2012 $1 million to Abercrombie & Fitch (non compliant electronic I-9 form system) (even though no unauthorized workers and employer had used E-verify for years) -- September 2010.

13 ICE Enforcement Activity (cont.) Immigration & Customs Enforcement continues to increase the number of audits done each year. There is no industry that is immune and the size of the business does not protect you from an audit. Small businesses have been faced with 6 figure fines. Negotiation with ICE is possible to adjust the original fines. Good faith efforts (selfaudits, trainings, policies in place) help to reduce penalties.

14 I-9 Traps for the Unwary Common errors include: Not checking the correct boxes. Leaving blanks. Accepting the wrong documents. Failing to sign and date the forms. Untimely completion of the forms.

15 I-9 Traps for the Unwary (cont.) Discrimination issues. Companies have received fines in excess of $275,000 for discrimination in employment eligibility verification process. Employers may not tell the employee what documents to present employee chooses from lists.

16 Preparation for a Government Inspection Consider Document Retention Practices Where are the I-9s kept and how are they maintained? Do you keep copies of documents presented or not? You must be consistent. Do you have paper or use an electronic system? If electronic it must comply with DHS requirements. Do you have a tickler system to re-verify I-9s?

17 Preparation (cont.) Consider E-Verify. Currently E-verify is not required unless you are a federal contractor. Eventually all companies may have to enroll. See

18 Preparation (cont.) Do an I-9 self audit. Best practice --have a third party with experience in Immigration/I-9 issues assist your self-audit. It will catch mistakes that internally may not be found. On average when we have assisted I-9 selfaudits (for organizations with well informed and organized HR offices), we have found that a majority of the I-9s have paperwork mistakes. Implement a training program and adopt policies for HR and managers with hiring/i-9 duties.

19 Contact Information Steven L. Winer, Attorney Direct Ext: Paula L. Violo, Immigration Paralegal Direct Ext: Orr & Reno, P.A. 45 South Main Street, P.O. Box 3550 Concord, NH