Huge Jump in I-9 Audits
3/15/2013 12:00:00 AM
The number of I-9 audits multiplied over the past decade, rising from almost none—just three in 2004—to 500 in 2008 and 3,004 in 2012.
Employers should pay attention accordingly, as the fines for substantive and procedural violations of the Immigration Reform and Control Act (IRCA) can add up quickly, Daniel Brown, an attorney with Fragomen in Washington, D.C., said on March 12, 2013, at the Society for Human Resource Management’s 2013 Employment Law & Legislative Conference.
For knowing violations, IRCA penalties range from:
$375-$3,200 for each unauthorized employee for a first offense.
$3,200-$6,500 per unauthorized worker for a second offense.
$4,300-$16,000 per worker for a third offense.
For paperwork violations, the fines range from $110 to $1,100 per violation, he added.
When the government assesses penalties, the biggest factor it examines is the percentage of reviewed I-9 forms that have errors, said Brown, who is a former counselor to the assistant secretary at the U.S. Immigration and Customs Enforcement (ICE). If more than 50 percent have paperwork violations, for example, the paperwork fines typically are $900 per I-9, which may be adjusted up or down, he added.
Put Yourself, Not Notaries, on the Hook
One frequent error employers make is failing to have someone physically present on their behalf while the new employee holds the I-9 in his or her hands and the employer representative fills out Section 2.
"The law has not kept up with business practice,” Brown remarked, noting that ICE has refused to ease up on this requirement even though telecommuting far from any office is commonplace. "Large employers ask all the time how they’re to do this,” he said.
A notary public is one option, but increasingly, notaries are hesitant to act in this capacity out of fear that they may be held liable if there are I-9 penalties later.
"We’ve helped employers prepare memos to take to notaries noting that the employer would be on the hook, not the notary,” he said, explaining that this makes it more likely the notary will agree to act on the employer’s behalf.
The notary doesn’t need to act in his or her official role as a notary, Brown added. A new employee’s mother could act on the employer’s behalf, though that wouldn’t ordinarily be advisable, he joked.
A local law firm is another option.
Or an employer may send a new employee to a bank, which probably has a notary who could act on the employer’s behalf. "It’s a difficult thing to find a solution, especially within three days,” Brown acknowledged. Section 2 of the form must be completed within three business days of the employee’s first workday.
The notary is not required to sign the form as an agent of the employer but may simply sign it. And notaries should put the company’s address below the signature, not their own, but write in their name, Brown said.
I-9 audits used to be random, but now they are more often the result of disgruntled former employees
complaining to ICE.
Also, ICE likes to go after companies connected with the nation’s critical infrastructure, such as those that run
power plants, food-service businesses, those connected to airports, or anything else that seems like "homeland
security writ large,” Brown said.
Author Allen Smith, J.D., is manager of workplace law content for SHRM. Follow him on Twitter @SHRMlegaleditor.