New I-9 Rules and ICE Audits: How to Protect Your Business From A Compliance Crisis

Increased I-9 audits and enforcement actions by U.S. Immigration and Customs Enforcement (ICE) have put employers on high alert. Businesses across industries are facing stricter compliance requirements, and failure to meet them can result in hefty fines and legal consequences. With recent changes to Form I-9 and evolving rules regarding remote verification, it’s more critical than ever for employers to ensure they are following proper procedures. In this article, we’ll break down the latest I-9 compliance updates, ICE’s new enforcement priorities, and the steps you need to take to protect your business.

ICE Cracks Down On I-9 Compliance

The United States Immigration and Customs Enforcement (ICE) is “cracking” down on employers who aren’t in compliance with Form I-9 requirements. This means more I-9 audits are happening. All employers in the United States must complete Form I-9 for every employee they hire – whether the employee is temporary, seasonal, part-time, or full-time. This form is used to verify the employee’s eligibility to work in the U.S. Employers can get the latest version of the form on the USCIS website.

 

Key factors about Form I-9:

• The I-9 form must be completed for all new hires within three business days of starting work.
• Employers must keep completed I-9 forms for three years after hire or one year after the employee leaves, whichever is later.

Recent changes to fines for I-9 violations (as of June 28, 2024):

• Paperwork violations: (this includes errors on the completed forms)
  • up to $2,789 per form 
• Knowingly hiring unauthorized workers:
  • First offense: up to $5,579 per violation
  • Second offense: up to $13,946 per violation
  • Third offense or more: up to $27,894 per violation
• Failure to notify DHS about continued employment: (for employees who’s employment eligibility has an expiration date)
  • up to $1,942 per employee

Fines can vary based on the size of the business, the severity of the violation, whether unauthorized workers were involved, the employer’s history of violations, and the employer’s level of good faith. Employers who repeatedly violate I-9 rules may face even higher fines or imprisonment.

I-9 Audit review:

• Keep I-9 forms on file for three years after hire or one year after employment ends, whichever is later
• Employers must be able to provide I-9 forms within a certain number of days if requested by government officials
• If storing I-9 forms electronically, ensure the original signed forms are scanned and securely stored

Employers must provide employees with complete instructions for filling out the I-9 form and a List of Acceptable Documents.

Tips for I-9 Compliance:

• Keep I-9s separate from employee personnel files. This can help prevent privacy issues and make retrieval easier if needed.
• Do not ask candidates to complete an I-9 form before they start work. Only request it within three business days following their first day.
• Always review original identification documents – don’t accept photocopies.
• Don’t tell employees which documents to provide. They must choose one from List A or one from List B and List C.
• Don’t accept expired documents.
• Enroll in the free, online, E-Verify system

Common Questions:

1. Can I complete the I-9 form for the new hire?
   • No, you cannot complete Section 1 of the form. The employee must fill it out and attest to their eligibility.

2. What documents are acceptable for verification? 
   • The IRS provides a great resource document listing the acceptable forms of identification. This resource list can be found here, or is downloaded with the I-9 form. 

3. What happens if an employee cannot provide acceptable documentation? 
   • If an employee is unable to provide acceptable documentation to satisfy the I-9 verification, the employer may be required to terminate the employee’s employment as they are unable to verify employment eligibility. Remember, verification of employment eligibility is mandatory for all employees regardless of their status within the company. 

4. What if one of the documents provided by the employee appears suspicious? 
   • If an employee presents documents which, upon inspection, appear questionable, an employer can request an alternative document on the list of acceptable documents. Reminder, the employer cannot dictate which document the employee provides. 

Special Circumstances (Post-COVID-19):

• Following the COVID-19 pandemic, the Department of Homeland Security (DHS) extended authoriztion to permit employers to use live video to verify documents, but only if the employer is enrolled in E-Verify. E-Verify is a free online system for verifying employment eligibility. Some employers are required to use E-Verify by law, such as federal contractors or employers in certain states.

• Some states, including Alabama and Arizona, require all employers to use E-Verify. States like North Carolina, Tennessee, and Utah require employers of a certain size to use it. However, California has banned municipalities and state agencies from requiring E-Verify for contracts.

What The Compliance Crack Down Means For Your Business

As ICE intensifies its focus on I-9 compliance, businesses must be proactive in reviewing and updating their employment verification practices. From conducting internal audits to staying informed about new electronic verification policies, maintaining compliance is key to avoiding costly penalties. Ensuring that your I-9 forms are properly completed, stored, and up to date will not only keep your company legally secure but also help foster a compliant and ethical workplace. Need assistance navigating I-9 compliance? The Buzz HR is here to help with expert HR guidance, policy updates, and workforce compliance solutions.