Presidential administrations have vastly different priorities, and, we know the current administration is placing a lot of attention on immigration. We heard it through the election cycle and that theme has steadily continued thru the first year of the Trump presidency. Politics is a like a pendulum. The swings can be dramatic, and as an employer, what happens in Washington and with I-9 compliance, should matter to you.
This past week, 7-Eleven stores across the US had simultaneous federal immigration agents knocking on doors in an enforcement operation that yielded 21 arrests and prompted the employer to comply with a full-scale audit. Audits like these can result in a number of penalties and subsequent fines that can be costly. Not surprising, the federal agency has in-depth fine schedules that will give anyone sticker-shock.
One of the ways to enforce immigration law is through the Federal Form I-9. From the Fed’s website: Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. The why seems fairly clear, but the how (compliance) isn’t. Completing the I-9 is typically done through Human Resources, a Manager, or the Business Owner at the time of hire. Usually it’s done in tandem with tax forms and insurance enrollment, but there are some timing and validation requirements that cannot be overlooked.
- Form I-9 – are you using the correct form? The latest version is dated 7/17/2017. If you are using a form dated prior to that, get rid of it and replace it across your organization right away. Some managers have a tendency to be “helpful” and keep a version on their desktop. Remind everyone to remove and replace if that’s the case. The date is at the bottom left of the form. This date is important because if you’ve hired anyone after that date and used the previous form, you’re out of compliance. According to the Department of Homeland Security, if you discover you have completed an outdated expired Form I-9, you may correct the error by either stapling the outdated, but completed form, to the current version having the employer sign the current version notating why the current version is attached (wrong edition was used at time of hire) or, drafting a letter explaining that the wrong form was filled out correctly and in good faith.
- Timing – when do you have to have this form completed? Timing and the dates that are recorded are key. The employee section of the form must be completed on the first day of work. The employee must provide documentation that is validated in the employer section and must be completed within 3 days. My advice is to let new employees know that this will be a requirement and come to work on day 1 prepared. Catching up with people after the fact can be difficult and the details sometimes get neglected.
- Validation – attention to detail matters. Employers must carefully complete every detail of the form exactly according to the published sample. The accepted documents presented must fall within the guidelines outlined and the recorded dates have to coincide with when the employee starts work. Keep in mind that you cannot specify which of the acceptable documents the employee uses for the I-9. In regards to presented documents, I was recently at a HR professional association meeting and the employment law attorney suggested retaining copies of employee documents. If you do this for one, you need to do it for all.
- Retention & Storage – established a standardized process. Employers need to have I-9s on file for all employees that receive pay. These files can be electronic or paper, and I would suggest, separate from the employee’s personnel file. If you have multiple locations, the forms should be centralized. This helps with ensuring all I-9s are retained and stored similarly, and, in case of inspection, you can pull your I-9s and present easily. And, employers need to retain I-9s of former employees for a specified period based on an outlined calculation.
- Inspection – if you have employees, you are eligible for inspection. USCIS typically provides employers with written notice (Notice of Inspection) and the law allows employers three days prior to inspection. But, in the case of 7-Eleven, agents can inspect without notice if they have a warrant or subpoena. Employers should be prepared to present a list of all employees receiving pay and their I-9s. Remember, each state also has Department of Labor agents that have the right to include I-9s as part of any inspection: safety, wage and hour, etc. I would even suggest that’s going to become commonplace with this administration.
The likelihood of having federal agents wearing ICE jackets standing outside your door tomorrow is probably not imminent. But as an employer, there is a risk associated with not having your documents in proper order. Ensuring the person completing the employer section and validating the documents presented by the employee is trained is critical. That person doesn’t need to be an expert with documents, but they should feel confident in what is presented and be schooled in fraud. Lastly, I would regularly perform an I-9 audit. It doesn’t sound appealing, but it’s best practice and it alleviates the pain associated with penalties and fines – regardless of the political pendulum.