October 2018

by Julie A. Pace and Heidi Nunn-Gilman, The Cavanagh Law Firm

Enforcement and penalties have doubled since 2015. Under the Trump Administration, the number of ICE audits has hit a record high. In October 2017, ICE announced that it would quadruple to quintuple the number of ICE audits it would conduct, and ICE initiated over 5,200 audits in 2018. ICE has conducted arrests in conjunction with some of its worksite enforcement audits, having made 594 criminal and 610 administrative worksite-related arrests between October 1, 2017, and May 4, 2018.

The Department of Homeland Security Immigration and Customs Enforcement routinely audits the Forms I-9 for companies and can impose civil or criminal penalties for violations.

Since November 1986, the Immigration Reform and Control Act has required that employers complete a Form I-9 to verify the identity and employment eligibility for all newly hired employees.

IRCA also prohibits discrimination on the basis of national origin or citizenship status. This article does not address the non-discrimination provisions of IRCA, but employers should ensure that their I-9 and new hire processes do not discriminate or treat non-citizens differently than citizens.

For example, employers cannot ask for specific documents or additional documents, but must instead accept what the employee provides as one document under List A or one document from List B and List C to complete the I-9 Form. This means it is a violation to say “please show me your driver’s license and SSN card.” The employee chooses the documents to show an employer.

The primary defense to a charge that an employer has hired unauthorized workers is that the employer did not have actual or constructive knowledge of the employee’s unauthorized status. Complying with the verification procedure creates a good faith defense to an alleged violation. Failing to comply with the verification procedure can create a presumption that the employer had constructive knowledge that the employee is not authorized to work.

The Form I-9 Verification Procedures

The I-9 form must be completed after the offer of employment. The employee must complete Section 1 of the Form I-9 on the first day of employment, but the employer generally has three business days after hiring the employee to fully complete section 2. An employer must complete the entire I-9 form by the start of employment for employees who will work three days or less.

The List of Acceptable Documents is contained on the final page of the I-9 Form. Note, however, that if an employee uses a List B document and the employer uses E-Verify, then the List B document must contain a photo. The I-9 instructions can be posted with other required employment posters.

Both the employer and employee must attest to the Form I-9 under penalty of perjury. The employee verifies their status and that the documents are legitimate. The employer verifies that it has reviewed the original documents submitted by the employee, and that the documents reasonably appear to be genuine and relate to the person presenting them.

Always Keep Current Employees’ I-9 Forms. After an employee has resigned or is terminated from the company, the length of time the company must keep the I-9 depends on the duration of employment. Here is an I-9 retention table:

I-9 Forms and Pre-Audit Steps to Prevent or Reduce Liability

Employers should conduct a self-audit or retain legal counsel to help conduct an audit. The first step in a self-audit is to print a list of employees and ensure that the company has a completed Form I-9 for every employee within the retention period (according to the table above). If the company is missing a Form I-9 for any current employer, it should immediately complete a Form I-9 and use current date. If there are errors on the Form I-9, work with legal counsel to determine how to correct the errors.

Below are some tips for completing and auditing the Form I-9.

1. Advise supervisors and human resources representatives about the requirements.
2. Note that discrimination on the basis of citizenship is generally illegal.
3. Recognize that employment decisions cannot be made on the basis that an individual’s work authorization will expire at some point in the future.
4. Do not specify for employees what documents need to be presented. Rather, allow the applicant/employee to review the List of A, B and C documents and choose what to present.
5. Be consistent in applying the verification procedures. Verify each employee’s status in the same manner and at the same time (i.e., the first day of employment). Do not target non-citizens differently.
6. An I-9 Form and employment authorization verification should be completed only after the employee has been hired.
7. Make sure to complete the English version of the Form I-9. The Spanish I-9 is acceptable only in Puerto Rico.
8. Make sure to keep both pages of the Form I-9 together securely. It is permissible to print the I-9 two-sided, which would help ensure that the two pages are not inadvertently separated.
9. Make sure your company has established a tickler system regarding the expiration dates of documents, such as temporary work cards, that demonstrate the expiration of an employee’s work authorization. Employers must re-verify work authorization on or before the date that that the original work authorization expires. Companies may want to begin notifying employees six months prior to the expiration date to ensure the employee has sufficient time to obtain a new card.
10. Do not allow an employee with temporary work authorization to work past the expiration date on their employment authorization document or other temporary work authorization card.
11. Employee must complete, sign, and date Section 1. The entire section must be completed by employee (with or without the assistance of a preparer or translator). Section 1 must be completed on the first day of employment.
12. There is no requirement that the employee present any documents to complete Section 1. Employers may not request documents to verify information provided in Section 1. To do so may be an immigration-related unfair employment practice.
13. If the employee does not read English or does not read or write, a preparer/translator can be used to complete Section 1. The employee must sign his or her name. The preparer/translator must also sign at the bottom of Section 1.
14. The employee must check one of the four boxes regarding citizenship in Section 1. If the employee has a permanent resident alien card, the employee should check box 3, Permanent Resident. If the employee has an EAD card, the employee should check box 4.
15. To complete Section 2 of the I-9, the employer must review original, unexpired documents from the employee from the List of Acceptable Documents. No photocopies.
16. If information is missing from an I-9 so it is not fully complete, then complete a new I-9 Form and use the current date on which you reviewed the documents as the date the I-9 is completed, but identify the original hire date for the “employee’s first day of employment” in Section 2. Keep both the original and updated I-9 forms together.
17. Keep I-9 forms separate from personnel files.
18. Make sure that the name on the documents generally appear to match the name the person is using on the Form I-9 and any other employment-related documents. Paychecks should be made payable to the same name used on the Form I-9 and qualifying documents.

ICE Notice of Inspection and I-9 Audit

ICE initiates an I-9 audit by serving a Notice of Inspection and subpoena. Employers are advised to consult with legal counsel if they receive an audit notice. Always keep copies of everything provided to ICE and obtain a receipt for each individual I-9 provided to ICE.

After ICE completes its review, it may provide employers a Notice of Technical or Procedural Failures. The Notice of Technical or Procedural Failures identifies technical violations identified during the inspection, often referred to as “paperwork violations.” The employer is then given 10 business days to correct the forms.

The Notice of Suspect Documents is one of the most critical notices a company receives. The NSD advises the employer that ICE has determined that an employee is unauthorized to work in the U.S. Currently, the Notice allows the employer up to 10 days from the date of receipt of the NSD to terminate the individuals identified in the Notice, unless the employee contests.

When an employee is informed they are on the NSD, ICE provides the employee an opportunity to contest. Sometimes ICE will meet with the employee or ICE may ask the company to obtain additional copies of additional documentation from the individual that can demonstrate work authorization if an employee believes the finding is in error.

The final step in the audit is for ICE to issue its findings. If it finds violations, it may issue a Warning Notice, which closes the case with no fines, or a Notice of Intent to Fine, which sets out the violations and proposed penalties. Employers can negotiate a settlement of the fine amounts or request an administrative hearing.

The penalties for not completing or not correctly completing a Form I-9 can be steep. Employers, however, may be exempt from fines “technical or procedural” violations if employers made a “good faith attempt” to comply and corrects the technical or procedural failure after being notified by ICE of the error. The exemption does not apply if ICE has discovered the violation, given the employer ten days to cure the violation, and the employer has failed to cure the violation. Also, this exemption does not apply if the employer has engaged in a “pattern and practice” of paperwork violations. The best defense to any liability under IRCA is a fully complete Form I-9.

The civil penalties for violations of IRCA range from $224 to $22,363. Violations of IRCA can also lead to criminal penalties. Employers who engage in a “pattern or practice” of knowingly employing unauthorized individuals can be subject to civil penalties and imprisonment. Businesses are subject to forfeiture of assets.

Julie Pace is a senior member at Cavanagh Law. She concentrates her practice in the fields of employment law, immigration compliance, OSHA, health care, and construction. She defends claims of sexual harassment, employment discrimination, retaliation, whistleblower, and wrongful discharge, and against charges by the EEOC and ACRD. She handles matters involving OSHA, ICE, OFCCP, DOL, NLRB, Davis-Bacon, FAR, ADA, FMLA, and wage and hour laws, audits and issues. Pace also handles issues involving the Affordable Care Act and addresses the changes and options it presents to companies. Her Davis-Bacon and prevailing wage practice includes counseling and training on state and federal prevailing wages and benefits requirements, coverage and applicability of prevailing wage laws, coverage exemptions, worker classification and pay issues, addressing wage determinations, wage surveys, and representation of employers before the Department of Labor Wage and Hour Division and similar state agencies. She can be reached at (602) 322-4046 or jpace@cavanaghlaw.com. Heidi Nunn-Gilman is a senior member at Cavanagh Law. She is a member in the Employment, Labor, OSHA, and Immigration Department. Nunn-Gilman’s practice focuses on human resource counseling and employment litigation. She has extensive experience handling employment immigration compliance strategies, including I-9s, E-verify, ICE and worksite investigations and enforcement under the Legal Arizona Workers Act (LAWA) and similar state and local laws. She regularly advises clients on matters relating to labor and employment law, federal contractor compliance (including Affirmative Action, Davis-Bacon, and federal contractor E-Verify requirements), ADA, Title VII, FLSA, NLRB, FMLA, leaves, drug and alcohol, union matters, wrongful discharge, wage and hour laws for both public and private employers, employee handbooks, confidentiality and non-compete agreements, and executive agreements. She can be reached at (602) 322-4080 or hnunngilman@cavanaghlaw.com.

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