Have You Audited Your I-9 Forms Lately?

The new administration has been very vocal about its desire to remove undocumented immigrants from the country. During the week of Feb. 6, ICE agents carried out raids in the Los Angeles, Chicago, Atlanta, San Antonio and New York City areas, arresting more than 680 immigrants. According to Homeland Security Secretary John Kelly, about 75 percent of those were "criminal aliens" who were convicted of various crimes. Nevertheless, many see this action as the beginning of more aggressive efforts to target undocumented immigrants. The Obama administration deported a record number of illegal immigrants, so an increase over those numbers would impact massive numbers of people-- and their employers.

Increase in number of ICE personnel may lead to more I-9 workplace audits

President Trump's executive order on interior immigration enforcement calls for 10,000 additional ICE agents. ICE, a component of the Department of Homeland Security, is charged with not only the removal of unlawful immigrants, but the enforcement of immigration laws through such actions as the inspection of an employer's Form I-9s. If there were such an increase in ICE agents, as President Trump has proposed, there could be a corresponding increase in the number of employer inspections. Industries such as construction and agriculture may be hardest hit.

I-9 Basics

The law requires employers to complete an I-9 within 3 business days of the hiring of a new employee. The employer's representative must physically examine the documentation presented by the individual establishing identity and employment eligibility and ensure that the documents presented appear to be genuine and to relate to the individual, and complete the employer's portion of the form. The employer cannot tell the employee what documents to present and must accept the documents presented by the employee if the documents appear to relate to the individual presenting the document and are acceptable to evidence both identity and employment eligibility. An employer who hires an individual for employment for a duration of less than three business days must physically examine the documents and complete Section 2 of form I-9 at the time of the hire. Under some circumstances, an employer may accept a receipt for one of the acceptable documents instead of an original of the document, but the employer may not accept a receipt in lieu of the required document if the employment is for less than three business days. If the new hire has a temporary work authorization, the employer may not discriminate against the employee on that basis but must keep up with the expiration date and make sure the employee does not become unauthorized to work. In addition, the employer is responsible for retaining Forms I-9 and making those records available for inspection by authorized government officials (maintain I-9s three years after date of hire or one year after termination, whichever is longer). I-9s can be maintained electronically.

If an employer is selected for an immigration audit, the audit will include not only the checking of all I-9s, but also may (but not always) include checking of social security and/or alien registration numbers to determine whether they are mis-matches. Sometimes such audits of mis-matches will be done only on a random basis, and if the proportion of mis-matches is not high, no further review of mis-matches will be conducted. If large numbers of mis-matches are found, the next critical issue is what ICE will do about those mis-matches. Employers must take affirmative steps to resolve a discrepancy in social security mismatches, but it is possible that the new Administration will enact regulations that spell out in more detail what steps an employer must take.

Practice Tip: Now is the time for employers to audit their I-9 records for compliance, before ICE starts increasing employer inspections.