by Terin Barbas Cremer, Esq.
As part of the Department of Homeland Security’s (DHS) nationwide crackdown on immigration compliance the U.S. Immigration and Customs Enforcement (ICE) has been increasingly serving Florida businesses with Notices of Inspection (NOI). An NOI informs business owners that ICE will perform a comprehensive audit of their hiring records (Form I-9s and associated documents) to determine compliance with employment eligibility verification laws. Small businesses without regular processes in place for compliance are oftentimes hit the hardest by the audits.
Maybe you are thinking, “I’ll be fine, everyone I employ can legally work in the U.S.” Nevertheless, there is still work to be done by employers. I-9’s are famous for errors. Following the NOI an employer must produce the company’s original I-9s within three business days. Thereafter ICE will conduct an inspection for compliance.
U.S. law requires that all employers have a Form I-9 on file for every employee to verify their identity and authorization to work in the United States. Employers complete this process upon hire of an employee; review and record the individual’s original, valid identity documents; and determine whether those documents reasonably appear to be genuine.
ICE follows a detailed process when conducting a Form I-9 audit inspection. Once the audit begins, ICE will inevitably find errors in the unchecked paperwork, resulting in civil fines or possibly criminal prosecution if a knowing violation occurred. In 2017, businesses were ordered to pay $97.6 million in judicial forfeitures, fines, and restitution, and $7.8 million in civil fines related to these audits. Monetary penalties for errors that the average person could think of as “paperwork errors” range from $220 to $2,200 per violation and penalties for knowingly hiring and continuing to employ violations range from $3,548 to $19,242 per violation.
All employers should take immediate steps to protect against possible future violations by conducting their own internal audits. Hiring an attorney to review I-9 documents and correct any errors in advance of an inspection is recommended. Regular internal audits will uncover problems in time to be corrected before the imposition of sanctions. Internal audits also demonstrate the employer’s good faith efforts to comply with ICE’s requirements. ICE looks favorably at both self-corrections and good faith efforts when making penalty determinations.
Many problems with I-9s stem from simple misunderstandings of the procedures and requirements. Training personnel about proper procedures can easily rectify these problems. Because the work environment, employee culture, and the I-9 process all change frequently refresher training courses for seasoned personnel are also recommended.
Terin Cremer Esq. is a participant in our Key Women’s Leadership Forum and her firm helps businesses and employees solve problems so they can stop worrying and focus on what matters most – the work. Her firm, Barbas Cremer, specializes in employment law, crisis management and business solutions.