I-9 Compliance: Steps Employers Can Take to Avoid Liability

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.

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, is still actionable even if other parts of the form are dated.

Audit 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 fines 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.

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. 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.

This area of immigration compliance can be confusing and complex, and can have unintended legal consequences.

Employers are wise to take preventive measures and to consult with us before embarking upon this 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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