Immigration and Customs Enforcement (ICE), within the Department of Homeland Security, audits and investigates immigration violations of work rules. The document at the center of those inquiries is the Form I-9, Employment Eligibility Verification (Form I-9). Form I-9 may not be the easiest form to complete though. Determining whether the identification and work authorization documentation the employee presents are sufficient can be challenging, particularly for companies without established practices and policies.
Many employers find themselves out of compliance and uncertain of how to proceed. As we discussed in a January 3, 2019 post, their concern is well-founded since ICE has greatly increased the numbers of Form I-9 audits, conducting 6,848 worksite enforcement actions in 2018, up from just 1,691 in 2017. The odds of receiving an audit notice, called a “Notice of Inspection,” and having to respond within three days, have increased and promise to increase through the rest of this fiscal year. However, for many employers, Form I-9 compliance was never part of their operations. They may have grown up as a “mom and pop” business and, as they expanded, simply kept doing what they had always done. Often, that did not include filling out Form I-9s. Other businesses are not sure whether they are in compliance or not, as their documents have not been audited or policies reviewed in some time.
There have been some recent high-profile Form I-9 cases that highlight the importance of addressing document deficiencies. For example, the June raids of Southeastern Pennsylvania farms were predicated on Form I-9 Notices of Inspections. We have seen audits and worksite raids of technologies companies like CVE Technology Group Incand staffing companies servicing larger corporations. Grocery stores and large-scale bakeries have been in ICE’s sights too. More companies are receiving ICE Notices of Inspection and more are finding themselves struggling to meet the short response deadlines.
The costs of not complying are high and it is vital that companies get a sense of their compliance picture, asking: Do we have Form I-9s? Did we use the right version of the form? Are the forms filled out correctly? Do we have acceptable copies of employee documents? How do we structure the corrections to minimize business disruptions? What are our duties to employees without documents? What can we communicate to our employees? And, of course, if the answers to these questions are not ideal, perhaps the most important question is “how do we fix it?”
While the Form I-9 seems simple, navigating the overall compliance environment can be challenging and those challenges are all the greater for companies not already in compliance. Since ICE only provides three days to respond to a Notice of Inspection, it is wise to be proactive and take immigration and compliance risk management seriously.