Do you employ immigrants? Avoid I-9 compliance issues and fines with these steps

With worksite enforcement a priority for ICE, employers need to take heed: even employers that have not been accused of knowingly employing undocumented workers can expect site visits and can be held liable for clerical violations and subject to steep civil fines.

What is the I-9 form?

The I-9 form is used by employers to verify and document the eligibility of their employees to work in the United States. It is completed by both employer and employee, and confirms that the employee is legally allowed to work in the US. The form has to be accurately filled out and kept up to date, and is maintained internally by the employer.

*UPDATE* There is a brand new form that MUST BE USED starting September 2017. Read Step 3 below

Even “harmless” paperwork errors can lead to steep fines

Well-intentioned employers often find inadvertent paperwork errors, or technical violations during their internal audits. Some seemingly harmless errors and omissions are actually considered substantive violations that carry significant fines.

For example, the failure of an employer to ensure that an individual employee checks the Form I-9’s box for “citizen,” “lawful permanent resident,” or “authorized to work until a specified date” is a substantive violation. An employer’s failure to provide the date of hire in the attestation portion of the I-9, while a technical violation, can still cause trouble – and is actionable – even if other parts of the form are dated.

Why is I-9 compliance important?

In addition to good business practice, I-9 compliance also may impact a company’s ability to compete for contract work.  Some major corporations are requiring immigration compliance provisions and certified audits in their vendor contracts. A company with a history of immigration law violations may jeopardize its ability to win such contracts. I-9 compliance is also an issue when an employer is involved in corporate re-structuring and where I-9 liabilities of an acquired corporation are assumed.  This could mean serious violations and fines.

Here’s how to avoid or minimize I-9 compliance issues with your foreign workers

1)Audit your I-9s:

Human resource personnel and others involved in the I-9 process should consider auditing their actual I-9 files, as well as their compliance procedures. Updating and/or appropriately correcting technical violations on previously completed I-9 forms may be necessary. Re-verifying certain employees also may be required. While such remedial actions may not shield an employer from liability and fines, the amount of such penalties will be mitigated by a number of factors, including the employer’s good faith, the seriousness of the violation, and the employer’s previous violations if applicable.

2)Develop a Compliance Plan:

Employers also may want to consider developing an immigration compliance plan that sets forth procedures for implementing and monitoring the verification of an employee’s authorization to work in the United States. Such a plan should include appropriate employee training, reporting obligations, as well as safeguards to ensure that whatever plan is implemented does not rule afoul of U.S. anti-discrimination laws.

3) Make sure you are using the NEW FORM

As of September 2017 there is a brand new form that is mandatory to use. Do not use your old forms after September 18 2017. The new form includes revisions related to the list of documents for I-9 verification, including the addition of Consular Report of Birth Abroad (Form FS-240) to the list of documents accepted under “List C” for verification of employment authorization.

This area of immigration compliance can be confusing and complex, and can have unintended legal consequences. Employers are wise to take pre-emptive measures and to consult with an experienced team of Immigration Attorneys before embarking upon this process alone.

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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