Let me set the scene: it is a typical work day (let’s say Tuesday) and you receive a frantic message from your receptionist:
“There are two federal agents here and they want to talk with the person in charge of hiring.”
When you go out to the reception area you are met with one agent dressed in business clothes and another agent in uniform with a holstered gun. The business agent shows you her badge and cordially introduces herself as an auditor from the Department of Homeland Security. She hands you a letter and announces that she will be back in three days and you must provide her the original Form I-9’s for all of your employees. The letter advises that within three days you must provide the auditor with the following:
- Original I-9 forms for all current employees;
- Copies of any documents attached to the I-9 forms;
- List of all current employees or the most recent payroll;
- Any Employer Correction Requests or Requests for Employee Information (“No Match” letters);
- Business information to include: Employer Identification Number, Owner contact information, copies of Articles of Incorporation, copies of business licenses, and any other applicable information;
- Any additional documents you believe will be helpful.
The first question that comes to your mind is “can they make me do this?” Once the agents leave, you call your trusted employment counsel and she confirms that you must comply. How are you going to gather all of these documents in three days?
You have just experienced an ICE (U.S. Immigration and Customs Enforcement) storm. As with all storms, your best chance of survival is preparation.
Consolidate Your I-9 Records
Most employers keep the original I-9 form in the personnel file for each employee. That may be fine for small employers. However, for larger employers retrieving the forms from each file can take a significant amount of time and effort. With the three-day deadline, you may have to drop everything to get the job done.
There is a better way: all of the original I-9 forms along with copies of the proof of employment eligibility documentation should be maintained and “No Match” letters in one file ordered alphabetically. If you do this, responding to the surprise ICE audit creates no hardship. Also, you should keep copies of the I-9 forms in the personnel files because ICE will take and keep the original forms during the audit.
Avoid the Expired Documentation Problem
If you are like most employers, you will make an unsettling discovery while you are gathering the I-9 forms for the ICE audit; some of the employment authorization documents have expired. At the time of hiring, you must accept documents with future expiration dates. It is your obligation to reverify employment authorization before the documentation expires. Discovering expired documentation at the time of the audit is common, but also too late. You could face civil penalties (between $110 to $1,100) for each failure to reverify employment.
Ideally, you should have a calendaring system that tracks the expiration dates and reminds you to obtain reverification. The calendar program in Microsoft Outlook can be used for this purpose. Consolidating your I-9 forms into one file can also help with this problem. You should keep a document at the front of the file with a running list of expiration dates that is updated/checked each time you place a new I-9 in the file. You need to adopt some system that will work for you to keep track of the expiration dates.