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In a surprise move, federal immigration officials recently announced that they will permit remote review of new hires’ I-9 documentation for those who work exclusively in a remote setting due to COVID-19 related precautions through October 31, 2022. According to the April 25th announcement, U.S. Immigration and Customs Enforcement (ICE) has said that the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis for at least the next six months. Could this continued flexibility be a welcome sign of things to come?
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Federal workplace immigration officials recently announced that “relaxed” I-9 rules have been extended until April 30, 2022, ensuring that employers can inspect I-9 documents for certain employees working remotely due to COVID-19 restrictions by way of camera or fax. U.S. Immigration and Customs Enforcement (ICE) noted that this extension will ensure that the guidance for employees hired on or after April 1, 2021, and working exclusively in a remote setting due to COVID-19-related precautions will remain in place for the next several months. What do employers need to know about this December 15 announcement?
Overview
Employees who qualify for these relaxed rules are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. When an affected employee commences “non-remote employment on a regular, consistent, or predictable basis” the employer must verify the employee’s documentation in person within three business days.
What if the Remote Employee Leaves Employment Before We Have a Chance to Inspect Their I-9 Documents in Person?
In its announcement, ICE also provided the following guidance: “Employers may be unable to timely inspect and verify, in-person, the Form I-9 supporting documents of employee(s) hired since March 20, 2020, . . .in case-by-case situations (such as cases in which affected employees are no longer employed by the employer). In such cases, employers may memorialize the reason(s) for this inability in a memorandum retained with each affected employee’s Form I-9. Any such reason(s) will be evaluated, on a case-by-case basis, by DHS ICE in the event of a Form I-9 audit.”
When a government agency announces a “case by case” policy, this is of little comfort to employers. We suggest that employers err on the side of caution and have remote new hires’ Form I-9 documentation physically inspected by an authorized representative retained by the employer for that purpose, unless COVID-19 restrictions render that option unadvisable.
You should carefully coach authorized representatives on how to correctly fill out page 2 of the I-9, as any errors or omissions will be attributed to the employer. In the alternative, you should monitor remote employees’ visits to the workplace and conduct the in-person follow-up document review as early as possible.
What’s Next?
Given that fines for I-9 errors can run in the thousands of dollars per I-9, the cost of a self-audit is relatively inexpensive, and helps ensure compliance moving forward.
The Social Security Administration (SSA) recently resurrected its practice of issuing Employer Correction Request notices – also known as “no-match letters” – when it receives employee information from an employer that does not match its records. If you find yourself in receipt of such a letter, it is recommended that you take the following seven steps as well as considering consulting your legal counsel.
Step 1: Understand The Letter
The first and perhaps most obvious step is to read the letter carefully and understand what it says. Too often employers rush into action before taking the time to read and understand the no-match letter.
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In the past week, Immigration and Customs Enforcement (ICE) has significantly increased the number of Notices of Inspection issued to employers nationwide, leading to a dramatic spike in I-9 audits. Unlike the enforcement initiative rolled out by federal authorities in February of this year, the latest sweep is no longer concentrated in Southern California but appears to be nationwide in scope.
There appears to be somewhat of a pattern with regard to which employers are targeted by this effort. ICE seems to be focusing on businesses operating in states, counties, and cities that have designated “sanctuary” status, and has also ramped up efforts to follow up with employers who have been subject to an I-9 audit in the past.
Regardless of whether you fall into either of these two categories, you are at increased risk of a visit from federal immigration authorities. What should you do today to prepare for a possible knock on the door from federal officials tomorrow?
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Failure to thoroughly complete I-9 paperwork has left an event-planning company with a fine of $605,250 (the largest amount ever ordered) serving as a reminder that employers need to be taking I-9 compliance very seriously.
On July 8, 2015, the Office of the Chief Administrative Hearing Officer (OCAHO), which has jurisdiction to review civil penalties for I-9 violations, ordered Hartmann Studios to pay the fine for more than 800 I-9 paperwork violations.
Immigration and Customs Enforcement (ICE) audited the company in March 2011.
The bulk of the violations charged against Hartmann were due to a repeated failure to sign section 2 of the I-9 form. Employers are required to complete and sign section 2 within three business days of a hire, attesting under penalty of perjury that the appropriate verification and employment authorization documents have been reviewed.
ICE found 797 I-9s where section 2 was incomplete. About half of these incomplete forms related to individuals from the International Alliance of Theatrical Stage Employees Union Local 16A, who worked for Hartmann on a project-by-project basis during the term of a collective bargaining agreement. Even though the union workers worked on a project-by-project basis, they were not terminated upon completion of a project and remained “on-call.” The union created a “three-in-one” form that combined a portion of a W-4 form, parts of sections 1 and 2 of an I-9 form, and a withholding authorization for union dues. No separate I-9 form was completed for these workers nor did Hartmann sign section 2 of the union form.
Hartmann could have been charged with the more-substantive offense of having failed to prepare any I-9 form at all for the 399 union members, because the union’s form is not compliant, but OCAHO declined to do so.
Hartmann told OCAHO it believed that the union form was sufficient to confirm that the workers had proper employment authorization, and that nothing further needed to be done to confirm their eligibility for employment. The company also said that it did not know signing section 2 of the form was a legal requirement.
In addition to failing to sign section 2, Hartmann was also cited for:
This case demonstrates the need for employers to conduct routine self-audits of their I-9 inventories to ensure that the forms have been properly completed and retained and are ready for inspection.
Employers should also ensure that acceptable proof of audits and training is kept so that it may be used as evidence of good faith in court proceedings.
The Immigration Customs and Enforcement division (ICE) of the Department of Homeland Security, continues to issue Form I-9 Notices of Inspection to businesses of all sizes across the nation. In fiscal year 2012, ICE served over 3,000 Notices to businesses, resulting in over $12 million in fines. Additionally, ICE made 520 criminal arrests tied to worksite enforcement investigations. These criminal arrests involved 240 individuals who were owners, managers, supervisors, or human resources employees.
The Notices of Inspection allow ICE to inspect employers I-9 forms to determine compliance with employment eligibility-verification laws. Once the Notice of Inspection has been issued, the targeted employer has three days to provide ICE with the company’s I-9 forms to be reviewed. In addition to I-9 forms for current and recently terminated employees, employers will be asked to turn over payroll records, list of current employees, and information about the company’s ownership.
Civil penalties for errors on the I-9 form can range from $110 to $1,100 per violation. Civil penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $3,200 per violation for first time violations. In determining penalty amounts, ICE considers five factors:
1) The size of the business;
2) Good-faith efforts to comply;
3) The seriousness of the violation;
4) Whether the violation involved unauthorized workers
5) Any history of previous violations.
Here are 12 tips to help protect your company and limit exposure for I-9 violations:
1. Make sure you are using the correct I-9 form. U.S. Citizenship and Immigration Services recently released a new version of the I-9 form. Beginning May 7, 2013 only the 03/08/13 version of the I-9 form will be accepted.
2. Have employees complete the form in a timely manner. For a new hire, the employee must complete Section 1 before starting work on the first day. You must complete Section 2 and the Certification by the end of the third business day.
3. Ensure that the Preparer/Translator Section is completed if the employee received assistance completing Section 1 of the I-9 form.
4. Don’t accept any expired documents.
5. Avoid discrimination or document abuse. When completing the I-9 process, do not require the employee to provide specific documents or more documents than minimally required.
6. Don’t play detective. If a document presented by the employee is on the List of Acceptable Documents, reasonably appears to be genuine, and relates to the person presenting it, you may accept that document to complete Section 2 of the I-9 form.
7. Re-verify expiring work-authorization documents before they expire and do not allow any employee to continue to work after a work-authorization document expires.
8.Don’t re-verify U.S. passports or passport cards, Permanent Resident Cards, or List B Identity documents.
9. Keep I-9 forms in a separate binder for current employees and another for terminated employees. Do not keep I-9 forms in employee personnel files.
10. Train the individuals in your company who complete the I-9 process.
11. Conduct self-audits. Correctable errors on the I-9 form should be fixed, the change should be initialed and dated, and the words “Per Self Audit” should be placed beside the correction.
12. Know your rights. If ICE appears to review your I-9 forms and conduct an audit, insist on a written Notice of Inspection and your right to have three business days before you turn over your original I-9 forms.
It’s clear from recent events that ICE will continue auditing employers’ I-9 forms to ensure that all employers are complying with immigration laws. Creating a culture of compliance and auditing your company’s forms is the best way to prepare your company for an ICE I-9 audit.
Please contact our office regarding any questions that you may have on performing an I-9s or how to perform an I-9 audit.