Contact: Joel H. Paget, Ryan, Swanson & Cleveland, PLLC (Washinton, USA)
On March 8, 2012, the Director of U.S. Immigration and Customs Enforcement, (“USICE”), John Morton, submitted a written report to the House Committee on Appropriations in which he reported: “Since January 2009, ICE has audited more than 6,468 employers suspected of hiring illegal labor, debarred 521 companies and individuals, and imposed
more than $76.4 million in financial sanctions. This focus will continue this year.” We already have reports of more and more audits throughout the state of Washington. So, it is just a matter of time before you are subject to such an audit.
The Audit
USICE agents only have to provide employers 72 hours to produce the Forms I-9 for the agency to review. It is therefore more critical than ever to perform a self-audit on all of your Forms I-9 now to help avoid potential fines and penalties. If agents from USICE or the Department of Labor show up at your office be sure to immediately contact a knowledgeable immigration attorney. If there is missing data that is technical or procedural, you will have at least 10 days after the audit to fix the problems. But only the employee can correct Section One and the employee may be long gone. So you will not be able to correct Section One. Now is the time to audit your Forms I-9 and correct them. There are correct ways to amend the forms, so consult a competent immigration attorney.
You should be prepared for the scope of the investigation. Investigators are requesting records of all current employees as well as any employees terminated within the last year. All independent contractors, temporary staff from an agency, and “on-call” individuals will be scrutinized and the employer must produce a roster and supporting documentation. Employers must produce Social Security no-match letters received over the past year. The employer must provide an employee roster, payroll reports, IRS Quarterly tax statements and Washington State L&I reports.
Ten Do’s And Don’ts on Initial Preparation of the Forms
- Do ensure you are using the correct version of the Form I-9. Check the website www.uscis.gov every six months to see if there is a new form.
- Do keep all the Forms I-9 in a separate folder for current employees and another for terminated employees. You should not keep the Form I-9 in each employee’s personnel file.
- Do make a copy of the document(s) submitted by the employee for your file.
- Do not accept any document that has an expiration date that has expired.
- Do not re-verify U.S. passports or passport cards, Permanent Resident or Resident Alien Cards, or List B Identity documents.
- Do have a tickler system to ensure you re-verify expiring work authorization documents before they expire, and do not allow an employee to continue to work after his or her work authorization document expires.
- Do not engage in discrimination or document abuse when completing the I-9 form process. You do not get to choose which documents the employee should present.
- Do accept a document that is on the List of Acceptable Documents that appears to be genuine and relates to the person presenting it to you for the completion of Section 2 of the Form I-9.
- Do conduct a self-audit of your Forms I-9 to make sure they are correctly completed. It is so easy to make errors on these forms or leave them incomplete. Assign a detail oriented person to this process.
- Do know your rights! And make sure those on the front lines know them also. When the USICE agents come to review your Forms I-9 and conduct an audit, make sure they know they can insist on a written Notice of Inspection three business days before you turn over your original Forms I-9. Offer to bring the documents requested to their office. The less time they are on your premises the better.
Issues on Retention/Destruction
Forms I-9 must be kept for three years after the date of hire, or one year after the date employment is terminated, whichever is later. For example, if an employee retires after 15 years, his/her Form I-9 will be stored for a total of 16 years. You should destroy the Forms I-9 that you are not required to keep because they may contain errors that would subject the company to fines if there is an audit.
The Punishment
USICE wants to send a message to employers: “Just a small fine or a slap on the wrist is not a deterrent…we see more robust criminal cases…the prospect of 10 years in prison carries much sharper teeth than just a small fine” says Julie Myers, former Director of USICE. Employers, which include owners, executives, supervisors, and managers, could face multiple charges of Form I-9 errors and violations, Harboring of Illegal Aliens, Inducing Aliens to stay in the United States for Illegal Purposes, Making False Statements on the Form I-9, aiding or abetting an employee in making false statements or to commit other immigration law violations. The liability is assessed for constructive knowledge, not actual knowledge. Fines range from $110 to $1,100 plus per occurrence, (an occurrence is one single Form I-9 violation) to imprisonment and forfeiture of profits. For example, if an employee fails to check a box in Section 1, it may result in a fine of $1,100.
Our Offer
We are available to do a random audit of your Forms I-9 for one hour. If we do not find at least ten violations our time is free.
Joel H. Paget is a Senior Immigration Attorney at Ryan, Swanson & Cleveland, PLLC. For more information, please contact Joel Paget at 206.654.2215/paget@ryanlaw.com or visit www.SeattleImmigrationGroup.com.
