“It’s been shocking,” said Fragomen partner Cynthia Lange, who worked at the immigration service when the I-9 system was first implemented under Ronald Reagan. “The enforcement has spiraled... if you look at the total fines given, it’s really higher than we’ve ever seen them in the history of employer sanctions.”
It no longer matters what industry your company is in: all companies should be prepared for an audit at the moment.
“Under all the the past administrations, if you were in an area of business that had high levels of undocumented workers like manufacturing, hospitality, or foods …those were the types of businesses that were being targeted,” said Lange. “Under the most recent administration, we’ve seen a very much more even-handed administration of the I-9 laws across industries.”
The Immigrations and Customs Enforcement arm of the Department of Homeland Security is also targeting things that never attracted fines in the past. According to Lange, ICE will now fine companies for not completing I-9 forms at all, whereas in the past, “they really wouldn’t worry about that.”
Common mistakes employers make with I-9 forms
Misunderstanding the timeframe
Employers must have an employee fill in the first section of the I-9 on the day of hire, and the company has an additional two days after that to fill in the second section.
Misunderstanding what documents are acceptable
This is an area that causes much confusion for employers because of the various different types of documents that employees can provide. Employees have the right to choose what kind of documentation they will provide, as long as it’s considered acceptable by the law. “We still see employers saying ‘they’re a citizen; I want to see their passport’, and you can’t do that,” said Lange. “If they want to present a social security card and driver’s license, that’s OK.”
Misunderstanding the role of e-Verify
Just because your company has used e-Verify doesn’t mean that your I-9 forms will pass an audit, said Fragomen partner Dan Brown. E-Verify doesn’t account for any paperwork errors that could cost you thousands. “Sometimes people think e-Verify is a substitute for the I-9, but really it builds on the I-9.”
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The federal government is doling out I-9 audits and corresponding fines like never before in history, immigration lawyers at Fragomen have observed.