New Jersey Naturalization
Lawyer

Engineering News Record has noted that some employers are wondering how President Obama's executive actions on immigration will affect audits pertaining to the Employment Eligibility Verification Form (Form I-9). One component of the President's executive actions on immigration called for more focus on workplaces. At the moment, it is uncertain what this means and whether this focus will result in more penalties or sanctions arising out of I-9 audits.

Employers are understandably nervous when it comes to I-9 forms since they are one of the most frustrating and annoying obligations placed on the shoulders of employers. Although employees fill them out, it is the employer who must verify their accuracy and then stand ready to produce them during an audit by Immigration and Customers Enforcement (ICE). More audits and/or more burdensome I-9 paperwork would be unwelcomed by most businesses.

The HR.com website notes that some employers continue to mistakenly believe that they can "cut corners" with I-9 forms. This belief flies in the face of reality given that ICE has been "hitting companies hard" with I-9 audits in recent years and with no intention of letting up.

Other employers are under the impression that simply avoiding hiring undocumented workers will immunize them against an ICE audit. However, an ICE I-9 audit focuses more on an employer's proper completion of the Form I-9 than on employees themselves. Companies which have never hired an unauthorized worker could still receive stiff fines from Form I-9 errors due to the sloppy administrative handling of the forms. Recently, a construction company called M&D Masonry was ordered to pay over $200,000 in fines for I-9 violations.

The combination of stricter E-Verify laws and regulations and an increasing number of audits have made I-9 compliance critical if businesses wish to avoid steep fines. Unfortunately, as observed by the Society for Human Resource Management, studies show that a typical business will have errors on more than one half of their I-9 forms.

Suggestions

Business Management Daily advises that employers should not wait for an ICE audit before taking I-9 compliance seriously. Employers are advised to: (1) implement an effective and workable compliance plan; (2) regularly conduct their own internal I-9 audits; and (3) provide training to staff on the proper procedures to use in handling I-9 paperwork.

With regard to I-9 Compliance, Business Management Daily offers employers the following suggestions:

  • Require new hires to complete and sign section 1 on their first day of work.
  • Do not ask an applicant to complete an I-9 prior to making a job offer.
  • Carefully review the employee's documents to make sure that they are on the I-9's list of acceptable documents to reply on.
  • Retain copies of I-9 documentation.
  • Keep I-9s and duplicates of all relevant documents for three years after the employee was first hired or one year after termination, whichever comes first.
  • Do not put the I-9 in an employee's personnel file but set up a separate I-9 filing system.

Seek legal advice

Meticulous compliance with I-9 rules is a business owner's best defense against an ICE I-9 audit. If you have concerns about an ICE audit, you should contact a New Jersey law firm experienced in handling immigration matters. An attorney can advise you on how to comply with the law and how to handle the necessary paperwork that will keep you out of hot water with ICE.