By: Cristina Perez, Esq.
U.S. Citizenship and Immigration Services (“USCIS”) Employment Eligibility Verification forms (“I-9 Forms”) allow employers to verify the identity and employment authorization of individuals hired for employment in the U.S. All U.S. employers must ensure proper completion of an I-9 Form for each individual they hire. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of an employer) must complete the form. On the form, an employee attests to his or her employment authorization. The employee must also present his or her employer with acceptable documents evidencing their identity and employment authorization. Therefore, employers must examine the employment eligibility and identity documents to determine whether the documents reasonably appear to be genuine and to relate to the employee and then record the document information on the I-9 Form.
This may sound like easy and straightforward tasks. But in reality, it is not that simple. Proper completion of I-9 Forms requires proper training, accountability and, most importantly, patience. In today’s hostile immigration climate, where there are increased USCIS site visits, raids and audits, employers must be on the defensive to ensure their business and livelihood are protected and compliant with the law. While no business expects or wants to be audited, fines for errors on I-9 Forms may range from several hundred to several thousand dollars per employee. It is for this reason that many employers have begun to take significant precautions, such as taking steps to routinely self-audit all I-9 Forms in anticipation of an Immigration Customs and Enforcement (“ICE”) raid.
To this effect, ICE and the Immigrant and Employee Rights Section (“IER”) provide employers joint guidance on how to perform internal self-audits of employee’s I-9 Forms in a manner consistent with the employer sanctions and anti-discrimination provisions of the Immigration and Nationality Act (“INA”). However, this guidance does not insulate employers from liability under either provision. While not required by law, an employer may, and should, conduct an internal self-audit of I-9 Forms to ensure compliance with the employer sanctions provision of the INA. An employer may choose to review all, or a sample of I-9 Forms selected based on neutral and non-discriminatory criteria.
Before conducting an audit, it is important for an employer to consider: the purpose and scope of the audit; how it will communicate such to employees as to the reason for the self-audit; and what employees can expect from the process. An employer should also consider and have a designated plan on how to address any I-9 Form deficiencies discovered by the self-audit. Since ICE can examine an employer’s records at will, it is wise practice to undergo regular I-9 compliance self-audits.
Understating how to protect your business and workforce with the ever changing immigration trends remains essential. Due to the technical nature of the law, it is recommended that employees consult with an experienced immigration attorney prior to or during and I-9 Self-Audit.
If you have any questions regarding professional visas or any immigration issue affecting an employer, please contact Cristina Perez. Cristina is a Partner and Chair of Leech Tishman’s Immigration Practice Group. Cristina is based in the firm’s Pasadena office and can be reached at 818.550.8300 or firstname.lastname@example.org.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.