Form I-9 Compliance - Protect Your Business from Severe Fines

ICE (Immigration and Customs Enforcement) intensified its nationwide push to dramatically increase efforts to combat unlawful employment. On March 11, 2010, ICE arrested 29 undocumented workers at two Maryland restaurants, an office and several homes.

According to William Winter, ICE special agent in charge of Baltimore, "Today's enforcement action is part of a multi-phased approach utilized by ICE to ensure that employers are held accountable for maintaining a legal workforce. ICE is committed to investigating employers who engage in illegal employment schemes that utilize illegal labor to make an unlawful profit and give them an unfair advantage over businesses that operate lawfully."

There is no time like the present to adopt "best practices" to protect your company. Employer sanctions for failure to comply with Form I-9 requirements can be severe. Don't put your company in jeopardy by taking a "wait and see" approach to I-9 compliance.

Here is a partial list of actions employers should implement.

• Review your Form I-9 records NOW: Detect any errors on forms for current employees; know the most common mistakes.


• Correct Form I-9s: Correct old forms with errors.


• 3rd Party Form I-9 Audit: Contact Allott Immigration Law firm at 303-797-8055 for a compliance audit of your I-9 records.


• Document Requirements: Know which ID/employment eligibility documents are acceptable and which are not. For example - Do NOT accept a U.S. passport that does not have a cover.


• Employment Verification Systems: Use E-Verify or Social Security number verification systems for employment authorization.


• Employer Handbook: Order the Immigration Enforcement: I-9 Compliance Handbook.

Allott's SMART TIP: Avoid Discrimination Claims
A prospect should not complete the Form I-9 before the hiring decision is made. An employer who chooses not to hire an individual may be accused of discrimination based on data received on the form.

BE PROACTIVE. Do not take a "head in the sand" stance regarding Form I-9 compliance. In the event of an ICE inspection you want to be prepared.

The federal government requires all employers to verify the employment eligibility of every newly hired employee, regardless of nationality (this includes U.S. citizens) or country of origin. It doesn't matter if you know the individual personally or even if they are a family member, you still must have a correctly completed Form I-9 on file.

All employers must use the most current Form I-9, Employment Eligibility Verification. Improper completion of the Form I-9, failing to inspect the correct identity and work eligibility documents, improper storage of I-9 forms, and simple clerical mistakes are costing employers tens, and sometimes hundreds of thousands of dollars in fines.

Employers Should Develop a Hiring Protocol

1. Form I-9: New hires should complete the Form I-9 and provide employment eligibility documents AFTER the decision to hire is made and BEFORE the first day of work.


2. Start Date: Under no circumstances should new hires start work or be placed on the payroll prior to completing Form I-9 and providing acceptable documents.


3. Three Business Days: Hiring manager should fully complete Section 2 of the Form I-9 within 3 business days of the hire.


4. E-Verify: Copies of the Form I-9 and supporting documents should immediately be entered in E-Verify, the Internet-based, U.S. government employment verification system.

Allott Smart Tip: Hiring managers are not expected to be experts in detecting fraudulent documents, however they are required to examine documents provided by the employee to determine whether the documents appear genuine and relate to the employee who presented them.

Make it a high priority to develop a Form I-9 policy so that in the event of a visit to your place of business by Immigration and Customs Enforcement (ICE), you are well prepared.

The battle is raging! Because of the current worksite enforcement atmosphere, it is more important than ever for employers to have a good faith compliance plan that meets the criteria set forth in this statute:

INA 274A (a) (3) provides a defense for a business or person that establishes it has complied in good faith with the requirements of the law correctly using the Form I-9 with respect to the employment of an alien in the United States.

In other words, if you complete the Form I-9 correctly for every new hire and you do not acquire constructive knowledge and you use E-Verify, you will be able to demonstrate "good faith" in complying with the law. You should not have to worry about jail time or huge fines if you are the unfortunate target of an ICE (Immigration and Customs Enforcement) investigation.

Until recently, many businesses have failed to take Form I-9 compliance seriously. Due to the fact that in years past the law was not vigorously enforced, some industries have become dependent on comparatively cheaper, undocumented workers. Employers argue the survival of their business depends upon the undocumented workers. Workers' rights advocates argue illegal immigrants depress their wages and working conditions.

This debate has caused special laws concerning employer sanctions in all 50 States. While the battle is raging, the employer remains the target for enforcement. This has put a huge burden on some employers who must choose to downsize their business, lose key workers, or face many serious criminal charges or bankruptcy because of steep fines.

Fear of going to jail and/or paying fines that will bankrupt their business is the motivation that compels many employers to start an in-house clean up of their personnel files, paperwork, and hiring practices. Knowing how to start with an I-9 compliance plan is the most difficult part, but also the most important.