Only seven months into fiscal year 2018, ICE (the agency that enforces immigration compliance in the workplace) has already opened more worksite investigations than the agency completed in all of FY 2017. Since October 2017, ICE has launched 3,510 worksite investigations, initiated 2,282 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. These investigations have doubled last year's total, and worksite-related arrests have nearly quadrupled.
Now more than ever, employers need to evaluate their Form I-9 documents and practices to ensure they are protected in the event of an audit. Fines can vary and often range from $75 for each error found on an individual form up to $3,200 for missing or incomplete I-9 forms. Additional penalties and fines can be assessed if gross negligence is determined.
Follow these 10 tips to ensure your I-9 documents are ready for a successful audit:
1. Section 1 of the Form I-9 must be completed, signed and dated by the employee on the employee’s first day of employment.
2. Section 2 must be completed, signed and dated by the employer or designee within 72 hours of the employee’s hire date. If an employer operates during the weekend, then those days count toward the three-day time frame.
3. If the employee does not present their documents within the 72-hour period, with few exceptions they must be terminated and rehired when they are able to present their approved documents.
4. Allow employees to choose which of the approved documents they will use (refer to the list of Acceptable Documents). Do not mandate that any particular document be presented by the employee.
5. Ensure that the documents presented are original and not expired. Copies or expired documents cannot be accepted. The only time an employer may accept photocopies is if the document is a certified copy of a birth certificate.
6. Employers or their designee must physically examine the documents in the employee’s presence. A photocopy of the documents is not required, but should an employer decide to maintain copies they should be consistent in their practice to do so.
7. Make sure to follow the I-9 retention requirements! I-9 forms must be stored for three years after the date an employee was hired or one year after the date employment is terminated, whichever is later.
8. I-9 forms should be stored separately from employee files/records for ease of auditing and retrieval in the event of a government inspection. A best practice is to create a separate binder/file for active employees and one for terminated employees.
9. Always ensure you are using the most current Form I-9! Occasionally the USCIS updates the form and will establish a date by which the new form needs to be in use.
10. Protect your business by using the E-Verify system to confirm the eligibility of your new employees. E-Verify verifies the identity and employment eligibility of newly hired employees by electronically matching information provided by employees against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS).
We suggest employers audit their Form I-9s on an annual basis. Using an experienced HR professional for this audit is strongly encouraged and will help employers avoid six-figure fines.
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