Increased immigration enforcement is now a hallmark of the administration in Washington. In the first 100 days following the Trump inauguration, immigration arrests by U.S. Immigrations and Customs Enforcement (ICE) increased by almost 40 percent compared to 2016. In addition, the administration is adding 10,000 new agents to ICE.
With stepped-up enforcement like this, employers should prepare for a surge in ICE audits and immigration investigations.
Now is a good time to double check policies to ensure your company is complying with I-9 recordkeeping requirements. It’s also more important than ever to stay up to date on changes in immigration employment law.
If you don’t, the impact could be major. Even seemingly minor recordkeeping errors could have expensive consequences including fines, business disruption or worse.
Here are three things you should do to protect your business:
1. Use the New I-9 Form Starting September 18
Are you aware that all employers are required to have employees complete and sign I-9 forms upon hire? It’s been the law for decades. It’s a requirement whether employees were born in the United States.
Here’s what’s changed. On July 17, 2017, a new I-9 form was issued. It is mandatory for all employers to use the new Form I-9 beginning September 18, 2017, or face possible fines for using an outdated form.
On September 18, you will need to start using the I-9 form with a revision date of 7/17/2017.
So how do you stay up to date to ensure you’re using the correct I-9 forms in your onboarding process? An easy way is to use the HRdirect I-9 and W-4 Smart App.
2. Do a Compliance Self-Audit
Despite best intentions, it’s all too easy for companies to get tripped up on their I-9 recordkeeping for current and past employees — with expensive consequences.
Fines doubled in the past year. Fines for recordkeeping infractions are now at $2,156 per violation. Fines jump to $4,313 for those who knowingly hiring undocumented workers. In the case of repeated offenses, penalties can exceed $20,000 and even include imprisonment.
By conducting an I-9 self-audit, you can act early enough to minimize or avoid serious consequences. An I-9 self-audit helps your company:
- identify and fix mistakes,
- eliminate records your company is no longer required to keep, and
- ensure you are not inadvertently employing an undocumented worker.
The time to do an I-9 self-audit is before ICE is at your front door requesting records.
ComplyRight has a useful guide on how to conduct a self-audit. Get the free I-9 self-audit guide here.
3. Prepare in Advance for How to Respond to ICE Audits
Federal ICE investigators have the right to show up at a business unannounced with a Notice of Inspection to audit I-9 forms for current employees. Employers in sanctuary cities, and those in industries such as landscaping, hospitality and restaurants, may come under added scrutiny. It doesn’t matter how small the business — yours could be randomly chosen.
Even though ICE has the right to conduct an audit, there are things employers can do to limit the scope of any such action:
- Keep I-9 documentation in one place, separate from other employee records.
- Limit the records you provide to only what is required.
- Do not consent to any search of nonpublic areas without a legal search warrant.
- Don’t be pressured into waiving your permitted notice time. Usually businesses are entitled to three days’ notice.
Also, designate one employee to coordinate the company’s response to ICE audits. That employee should be thoroughly trained in advance, including when to seek legal advice.
By following best practices like these, an ICE audit can be kept to a minor business nuisance, rather than a major disruption with steep fines and other penalties.
In today’s environment, it’s more important than ever to take the right steps, like the three actions above. ComplyRight specializes in helping businesses of all sizes navigate the complexities of immigration employment compliance, and has many resources on its site that can help.
Image: Immigration and Customs Enforcement