Frequently Asked Questions
There is a heightened concern of employer audits by Homeland Security since about three weeks ago (on Jan. 10, 2018) the Department of Homeland Security published a new Employer Worksite Enforcement Policy focusing on enforcing employer compliance with immigration laws, specifically through increasing Form I-9 inspections, civil fines, arrest of employers and unauthorized employees; and outreach to instill a culture of employer compliance and accountability. Employers are seeking legal counsel to help ensure compliance with the immigration laws affecting employers.
Below are frequent questions and answers that may help with understanding the issues:
Do you think it’s too premature to call you (i.e. legal counsel), because I haven’t heard that Homeland Security is inspecting any employers in my area?
It’s good you called me now in advance of any notice from Homeland Security, because now I have the chance to save you money rather than fix problems after you have had to pay the government high fines. Homeland Security is unpredictable and it’s uncertain where the next employer investigations will happen. Homeland security audits are going on around the country. Additionally, Gainesville is considered a Sanctuary City for immigrants, so such cities may be on the Homeland Security radar.
How can you help my company avoid paying government fines if we get a notice of inspection from the government?
I will conduct a confidential Form I-9 internal audit to verify all forms are correct, check your standard operating procedures when hiring employees, and determine what protective measures your company may need to minimize its exposure to high government penalties.
Why is the I9 Form so important to employers?
The form is mandatory. There is an employer sanctions section found in the immigration laws. Employment is often the magnet that attracts individuals to reside in the United States illegally. The purpose of the employer sanctions law is to remove this magnet by requiring employers to hire only individuals who may legally work in the United States.
I thought the form was a simple form to complete and that I wouldn’t need a lawyer to review it!
While the I9 Form seems simple, it may create havoc for employers; because the two-page form is prone to technical errors -- and puts the legal burden on employers to ensure they are hiring authorized US employees. The employers must complete and store these forms properly and provide them in a relatively quick manner if requested by the Department of Homeland Security, Department of Labor, or the Immigrant and Employee Rights Section of the Department of Justice. These three government agencies have authority to audit your employee I9 Forms.
How much could my company be fined for just technical errors or omissions on the forms?
Fines for each TECHNICAL ERROR on the I-9Form, the fine ranges from $110 to about $1100.
That means that for a company of 100 employees hiring legal counsel to do an internal audit could potentially save that company over a $100,000 in just technical errors.
What happens if I have a properly completed and stored all my Form I-9s, but Homeland Security discovers that I have an employee that is not actually authorized to work in the US?
You will have a good faith defense against sanctions for unknowingly hiring an unauthorized individual, unless the government can show you knew or should have known of the unauthorized status of the employee.
Can I do anything now to show good faith in my hiring practices, so I can be prepared if I do get a notice of inspection from Homeland Security?
Yes, legal counsel can help you with developing standard procedures to protect against I9 violations and hiring authorized workers. Also, training your HR personnel on the policy procedures and advising every applicable employee that such procedures, once in place, must be consistently followed.
At all times throughout any contact Homeland Security makes with your company, our firm will be there to support and guide you through the process.
Further, our company will be just a phone call away for any questions or hiring doubts your company may have at any time in the future.
Lastly, just the fact that you hired legal counsel to conduct an Form I9 review and develop your standard procedures, shows a good faith effort on your company’s part to be compliant.
What would happen if the government thinks a business owner knows or should have known that their employee is undocumented?
The government’s position is that failure to do due diligence when hiring the employee is not an excuse. The moment a company becomes aware it is employing an illegal immigrant, it is supposed to let the employee go by giving them reasonable notice (generally two weeks).
The fines associated with knowingly employing an undocumented worker range $4,313 to $21,563 per illegal employee. Therefore, if a 30-employee company has 5 undocumented workers, that company could be subject to paying fines in a range of about 21,000 to $107,815.
In some cases, non-compliance may lead to criminal charges being filed if the government determines the employer has a pattern of violations involving the hiring or continuing employment of unauthorized workers.
Is discrimination considered in the hiring process with respect to obtaining the I9 information and identity documents?
There is a law that prohibits discriminating against workers who are eligible to work in the United States. For example, among other things, an employer may not ask any employee for more or different documents than are required to verify employment eligibility and identity -- or reject reasonably genuine-looking documents. Also, an employee must be allowed to choose which documents to show from the lists of documents provided on the I9.
Do US citizens need to complete I-9 Forms too?
Yes, while US citizens are automatically eligible for employment, US citizens must present the required documents and complete a Form I-9.
So just to clarify, even if I am sure my entire workforce is authorized to work in the US, I can still be found liable for fines?
Yes, because the I9 Form is subject to error and any technical error or omission on the Forms will cost a large amount in fines if you consider the aggregate cost of errors on all or some of your I9 Forms.
Do I need to complete Form I-9 for independent contractors or their employees?
No. For example, if you contract with a construction company to perform renovations on your building, you do not have to complete Form I-9 for that company’s employees. The construction company is responsible for completing Form I-9 for its own employees. However, you may not use a subcontractor that you know is using the labor of an employee unauthorized to work in the US.
I heard the I9 form recently changed. May I continue to use earlier versions of Form I-9?
No, employers must use the current version of Form I-9.
How will a company know if it has been chosen for an I9 audit by the Department of Homeland Security?
If Homeland Security chooses your company for an I9 audit, you will receive a Notice of Inspection. At that time, you will need to produce all your I9 Forms in a three-day time frame. That is why the best practice if to keep all your I9 Forms together and separate from your employee files. A good practice is to store your I9 Forms with in a binder so if Homeland Security requests the I9 Forms you can easily hand Homeland Security your Form I9 binder without having to stop any of your company’s functions to focus on finding and printing each I9 for your workforce.
Our firm will complete a confidential I-9 audit, developed your corporate immigration policy and procedures, assist with correctly storing your I9 Forms, and train your HR personnel on the policy and procedures they should consistently follow when hiring any employee. Remember the same policy must be used for all employees and not just foreign employees.