Unaudited Form I-9s: The Risk in the Shadows
The Immigration Reform and Control Act, enacted in 1986, made it illegal for employers to knowingly hire unauthorized workers. To enforce the law, completing Form I-9s became a requirement for employers. They were required to inspect documents present by employees that established their employment authorization. The form is to be kept for as long as the employee is employed or may be eliminated only after following purging rules for terminated employees. Form I-9 violations brought with it civil fines or criminal penalties that varied based on the violations. Click here to view a complete list of penalties.
Fast forward to 2012 and illegal immigration is still a hot issue. The last few years have seen the Immigration and Customs Enforcement (ICE) beefing up their auditing efforts by sending thousands of Notices of Inspection to employers. They have imposed millions in fines to those found to have hired unauthorized workers or those found to have errors in completing the Form I-9. That’s right, administrative/technical errors in completing the Form I-9 have cost employers millions.
Many employers do not realize that within their filing cabinets lie one of the greatest compliance risks – I-9 forms with unnoticed administrative errors waiting to be discovered by a trained auditor’s eye. Employers are housing hundreds, even thousands of forms; and as studies have shown employers can have anywhere between 30%-100% of forms with mistakes on them. With fines ranging between $110-$1,100 for each form, you can only imagine how large a fine can be imposed. Take the case of retailer Abercrombie and Fitch. While an ICE audit did not uncover any instance of the knowing hire of an undocumented worker, in 2010, A&F settled on a $1M fine over technical errors caused by their home-grown electronic I-9 system.
The best way to keep this risk to a minimum is for employers to perform internal audits on their existing forms; and provide continuous training for HR staff on the proper way to complete Form I-9s. Don’t wait for ICE to knock on the door as this can cost a lot more. If you haven’t had an audit on your own forms, officially or unofficially, be proactive and hire a team of experts to help you recognize weaknesses in your process. This will also help you identify errors on the forms to provide you with an opportunity to correct as much as you can.
Photo credit: Marcin Wichary