The new administration has expressed a priority in enforcing I-9 compliance. Employers should be prepared for an increase in Form I-9 audits or worksite visits and mitigate risk of incurring fines for violations.
All employers in the U.S. are required by federal law to complete and retain Forms I-9 for each employee on their payroll, which proves that the employee is eligible to work in the U.S. For current employees, employers are required to maintain original Forms I-9 on paper or in an electronic storage system that complies with certain Form I-9 regulations. For former employees, employers are required to retain Forms I-9 for a period of at least three years from the first day of employment or one year from the date employment ends, whichever is longer.
Employers selected for an audit will receive a Notice of Inspection (NOI), which gives the employer at least three business days to produce the Forms I-9 requested in the NOI to the reviewing Homeland Security Investigations (HSI) agent or auditor. If HSI finds technical or procedural failures, the employer will receive at least 10 business days to make corrections. All substantive violations or uncorrected technical or procedural failures may subject the employer to a monetary fine, and employers who are found to be in the practice of hiring or recruiting unauthorized individuals may be subject to criminal penalties. Employers who fail to properly complete and retain I-9 documentation can face civil penalties for I-9 paperwork violations ranging from $288 to $2,861. Employers that hire unauthorized immigrants to work in the United States could face civil fines of $716 to $5,579 per hiring violation for a first offense.
In anticipation of increased I-9 audits, employers are advised to be proactive in conducting internal audits of their Forms I-9 to ensure ongoing compliance. Employers can refer to ICE guidance on conducting internal audits, including how to correct errors and omissions. While conducting internal audits does not shield employers from penalties for violations, it may help employers invoke a “good faith compliance” defense during the auditing process and may help mitigate fines.
The immigration attorneys at Ryan Swanson can help your business structure an internal audit or respond to a Form I-9 audit Notice of Inspection.
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