1. Don’t Wait for ICE to Come Knocking – Formulate Comprehensive Policies Now

The most beneficial step you can take to protect your company against fines and allegations of civil and criminal immigration violations is to be proactive about immigration compliance.  Companies should prepare comprehensive policies and formulate consistent protocols for Form I-9 completion, reverification and retention; for responding to notifications from the Social Security Administration; and, for responding to government agents/officers who may appear at company worksites.  It is prudent to seek assistance from immigration experts and attorneys when preparing and distributing these policies.  Consistent and systematic use of a carefully-drafted and internally consistent policy addressing all relevant immigration regulations and practices can often make a significant difference in avoiding or minimizing penalties assessed if the company is investigated and prosecuted.

2. Audit All I-9s

If ICE initiates an investigation into your company, you will most likely be given only three days to provide ICE with Form I-9 records for all active and terminated employees.  For even small to mid-size organizations, it can take three days just to gather the documents requested, let alone check the documents for completion/errors.  If forms are proactively audited for compliance and mitigation of potential liability, the company will already have an idea of any errors made that cannot be corrected.  Even more importantly, those responsible for I-9 compliance will have the opportunity to correct technical violations and complete missing information.

A. Compliant Forms I-9 for each active employee, properly annotated if corrected;

B. A roster with Forms I-9 for all employees terminated within time period required for retention;

C. A schedule for when Forms I-9 for terminated employees may be purged; and

D. A report listing any outstanding issues that were not addressed during the audit, and why.

3. Consider an Electronic I-9 Solution for Future Compliance

Anyone who has ever audited a company’s Forms I-9 knows that the potential for error is extremely high – error rates are often well over 50 percent for companies with even the most highly-trained and sophisticated Human Resources professionals tasked with compliance.  Recent ICE activity demonstrates that the government knows the statistical error rates well and has specifically chosen Form I-9 review as a new method to generate revenue through the assessment of fines.  In fact, when interviewed about the enormous fines imposed against Shipley Do-Nut Flour and Supply Company Inc., ICE Assistant Secretary John Morton stated, “ICE will hold employers and businesses accountable and will hit those who knowingly break the law where it hurts – their bottom line.” 

When assessing fines in these investigations, the regulations provide for higher assessments when a repeated pattern of errors is evident and particular behaviors in I-9 completion are apparent.  Audit experience has demonstrated that many violations are repeated over and over and over – and when fees can be assessed on a per-form basis, even the smallest and seemingly insignificant errors can result in overwhelming monetary penalties when made repeatedly. 

Purchasing a tested, reliable Form I-9 software program is a prudent investment, especially if the software is designed to require that the Form I-9 be compliant before it can be saved and archived. Most software packages also include mechanisms for reminding the employer when a form must be reverified and when a form may be deleted (after an employee has been terminated) because the retention period has passed.  Another benefit is that all paperwork is retained electronically and can be accessed instantaneously, which is also very useful if ever required to produce such documentation for government investigators.  As more and more businesses are consolidating files and records to an electronic format, it is often an economical and practical choice for companies to move to converting their Forms I-9 to electronic records, as well.  And, as more an more employers are going to be required to participate in the government’s E-Verify program, electronic Form I-9 compliance may become a necessity, as well as a convenience.

Related Articles:

• Texas Employers Hit Hard by New ICE Initiative

• Indicators to Consider a Comprehensive Immigration Compliance Audit in your Business

We invite all of you to get a discussion going.  Please submit your comments at the end of this article, Thanks.