With the inauguration of Donald J. Trump as President, immigration enforcement is a top priority as illustrated by President Trump’s inaugural address and executive orders. Although we do not know yet what impact this will have on employers, it is widely expected that one component of the new administration’s immigration crackdown will be an increase in worksite enforcement and Form I-9 employment eligibility verification audits.
The Immigration Reform and Control Act of 1986 (“IRCA”) prohibits employers from hiring individuals who are not authorized to work in the United States and requires that the employer confirm the identity and employment eligibility of new employees. To satisfy this obligation, employers must properly complete and maintain Form I-9s for each new employee upon hire.
The Immigration and Customs Enforcement (“ICE”) division of the U.S. Department of Homeland Security is expected to perform increasingly more on-site workplace inspections and audits of employee immigration documentation under the new presidential administration. During an on-site audit, employers can expect that ICE will always review Form I-9 documentation maintained in personnel files for accuracy and completion.
Employers who knowingly hire or continue to employ unauthorized workers in violation of the IRCA are subject to civil penalties of $716 to $5,724 per unauthorized worker for a first violation, $5,724 to $14,308 per unauthorized worker for a second violation, and $8,586 to $28,619 per unauthorized worker for a third or subsequent violation. In addition to the aforementioned civil penalties, employers who regularly employ unauthorized workers are deemed to have intentionally engaged in a pattern of practice of violating the IRCA and may be subjected to criminal penalties of a fine of $3,000 for each unauthorized work and/or six months imprisonment. In the past, criminal prosecutions in the Northern District of Georgia include a company and its owner who were employing undocumented workers. The owner was indicted, and on the eve of trial, in exchange for his wife and brother-in-law being able to plead to a misdemeanor with no incarceration, the owner pled guilty and served fifteen months in prison.
Form I-9 is a federal document required by the U.S. Citizenship and Immigration Services (“USCIS”), which consists of three sections. Section 1 of the form is the Employee Information and Attestation. The employee must complete and sign Section 1, providing personal information and attesting to their identity and legal work eligibility status in the United States, no later than their first day of employment. Section 2 of Form I-9 is the Employer or Authorized Representative Review and Verification. The employer must complete and sign Section 2, confirming that an authorized representative of the company examined the employee’s original documents to confirm their identity and eligibility to work in the U.S., within three business days of the employee’s first day of employment. Employers may elect to use a voluntary online electronic system called E-Verify to compare a worker’s Form I-9 information against certain government databases to verify identity and employment eligibility. Employers may photocopy documents submitted by employees for the Form I-9 process but must apply their chosen method consistently. Section 3 of the form is used when re-verifying the employment eligibility of employees whose authorization has expired or who are being rehired. Form I-9 records must be maintained in the employee’s personnel file for at least three years from the date of hire or one year from the date of termination, whichever is later.
Seemingly minor inaccuracies in the filing or maintenance of Form I-9s will subject employers to potential fines and civil penalties. ICE will identify each instance of employer non-compliance as a technical error or substantive violation. Examples of technical errors include that Section 1 is missing the employee’s name, address, date of birth, or the date the employee began employment. ICE will provide the employer with 10 business days to demonstrate corrections of technical errors. If ICE is satisfied that the technical errors have been corrected during the 10-day window, they typically will not issue a civil penalty. Examples of substantive violations include that the employer failed to secure the employee’s signature in Section 1 or to sign Section 2; missing Form I-9s; or Form I-9s that were completed later than required by the IRCA. Civil penalties for technical errors and substantive violations range from $288 to $2,861 per violation.
Employers should review their Form I-9 to ensure that they are using the most current version of the form and conduct an internal audit of their Form I-9 documents. Employers who discover errors or violations during an internal audit should document the discovery in the file and the employer’s immediate response. Technical errors may be rectified by having the appropriate person correct the error in the documentation. Notably, substantive violations cannot be corrected by the employer and will remain subject to possible inspection and discovery by ICE. If an employer discovers a substantive violation, they must make note of it in the file and include an explanation of how the violation occurred (i.e.: innocent mistake or negligence versus intentional bad faith). If the violation involves a current employee, the employer should also contact the employee to explain that there was an issue with the original Form I-9 process and proper completion of the process is required. The employer should then place the new and complete Form I-9 in the employee’s personnel file with the original.
Employers should also be diligent in tracking the expiration dates of any employment authorization documents to ensure that the company promptly reverifies the individual’s eligibility for employment before their documents expire, and in any case no later than three days after the expiration date.
If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.