Worksite investigations have continued to put a freeze on some businesses. Especially targeted are those that have been known to hire undocumented workers. In order to avoid the chill that has been placed on production and plant operations across the U.S., its time to defrost the mystery behind Form I-9.
What Is Form I-9?
The Immigration Reform and Control Act of 1986 ("IRCA") mandates that as of November 6, 1986, all U.S. employers are required to have a Form I-9, Employment Eligibility Verification, on file for each newly hired employee, citizen and non-citizen alike. This form, which verifies the identity and employment eligibility of the newly hired individual, must be signed by the employee on or before the first day of hire and completed by the employer or its representative within three business days of the employee's first day of work. Failure to do so can result in significant civil and criminal penalties.
In an effort to reduce the illegal employment of undocumented workers, U.S. Immigration and Customs Enforcement ("ICE") is aggressively conducting random audits of businesses' I-9s.
In the event of an audit, employers have three days to present the documents requested by the subpoena attached to the Notice of Inspection ("NOI"). Typically, this requires presenting the I-9s for all current employees, as well as for terminated employees who fall within the I-9 document retention requirements, a detailed payroll run, certain employment tax records, answering a questionnaire regarding I-9 compliance and procedures, and providing information regarding the ownership of the company.
Special Agents and Forensic Auditors assigned to the case are responsible for examining the I-9s for paperwork violations and to determine if the employer is knowingly hiring and/or continuing to employ undocumented workers. If the I-9s are not found to be in compliance, significant civil and criminal penalties may be assessed. On the civil side of the ledger, these can range anywhere from $110 per paperwork violation found on the I-9 up to $16,000 for the unlawful employment of aliens, per person. Charges of criminality can result in jail time as well as forfeiture of property.
Therefore, it has become increasingly important to be aware of the dire nature of the ICE worksite inspections and to be prepared in the event of an audit. U.S. businesses should adopt compliance policies that will enable their businesses to "keep it cool" within the confines of this law.