A Whirlwind Start: Employers’ Recap of First 21 Days of the Trump Administration

President Donald Trump is just 21 days into his second term in office, but you might already be struggling to keep up with the number of changes and policy shifts coming from the new administration. While new presidents are typically judged based on their actions in their first 100 days, Trump’s whirlwind first three weeks warrant taking a pause to make sure you’re caught up on all the changes impacting key workplace issues. Major policy shifts have already affected immigration, DEI programs, equal employment opportunity, labor relations, and artificial intelligence. Here’s your 21-day recap:

1. Immigration

• What happened? President Trump took swift immigration action, signing 10 executive orders relating to immigration policy on day one. Among other things, those orders declared a national emergency at the U.S.-Mexico border, reinstated the “remain in Mexico” policy and terminated the asylum-related mobile app, and designated Mexican criminal cartels as terrorist organizations. Another one ended automatic birthright citizenship for children of undocumented immigrants, but this order has been blocked nationwide by federal judges in Washington and Maryland while legal challenges play out in court.
• Anything else? The Trump administration has begun carrying out its plans for mass deportations, which could have impacts on multiple key industries. U.S. Immigration and Customs Enforcement (ICE) has started conducting widescale enforcement activities, including workplace raids. And K-12 schools should be prepared for ICE activity on campus and check out our school-focused Immigration Enforcement FAQs.
• What should you do? Ramp up your I-9 compliance efforts, consider using the E-Verify system, and establish a rapid response plan. Take these five steps to prepare for anticipated enforcement activities. If you are subject to a DHS raid, contact our new Employers’ Rapid Response Team at (877) 483-7781 or DHSRaid@fisherphillips.com. Work with your immigration counsel to keep up with continuing policy shifts, develop proactive compliance strategies, and consider ways to support any impacted employees.

2. Affirmative Action and Diversity, Equity, and Inclusion (DEI)

• What Happened? This January 21 executive order not only dismantled key affirmative action and DEI standards for federal contractors but also directed federal agencies to combat “illegal” corporate DEI programs. Days later, the Department of Labor announced it was ceasing all pending investigations and enforcement activity under the now-rescinded Executive Order 11246, which had required federal contractors to meet certain race and gender affirmative action obligations since the 1960s. A lawsuit filed February 3 alleges that Trump’s anti-DEI efforts are unconstitutional.
• What should federal contractors do? Stay tuned for more information from the Office of Federal Contract Compliance Programs (OFCCP), track legal challenges to the administration’s actions, and reach out to your attorney to develop a game plan to comply with evolving requirements. You also must continue to participate in other required compliance filings (as applicable), such as EEO-1 and VETS-4212, and state pay data reporting.
• What should employers in the private sector do? Review or assess your hiring, training, and promotion practices in light of these new federal anti-DEI initiatives.  

3. “Gender Ideology” and the Equal Employment Opportunity Commission

• What happened? Within hours of taking office, Trump signed a sweeping executive order requiring the federal government to recognize only two biological sexes (male and female, as determined at conception) and removing the concept of “gender identity” from federal anti-discrimination laws – a stance that seemingly runs counter to the Supreme Court’s Bostock ruling on Title VII’s definition of “sex.” The order also calls for reversals of any policies that allowed gender-identity-based access to single-sex spaces (like bathrooms), and rescinds many Biden-era actions, including 2024 EEOC workplace harassment guidance that expanded protections for pregnant and LGBTQ+ workers. And you can click here to read about how the “gender ideology” order impacts K-12 schools.
• Anything else? Trump took the unprecedented step of firing two Democrat members of the EEOC on January 27, enabling him to quickly install a majority of Republican commissioners rather than having to wait until their normal terms expire over the next two years.
• What’s next? We expect Trump to appoint at least one EEOC replacement member so that the agency can began taking action that align with his plans. You can expect to see DEI programs on the chopping block, a rescission of the 2024 Pregnant Workers Fairness Act rules, expanded rights for religious workers, restricted approaches to gender identity and worker bathroom access, stronger “reverse discrimination” principles, and overall reduced EEOC enforcement and outreach. But you can also expect uncertainty due to the likely litigation over the two EEOC Commissioner firings and the potential for a court to strike down any steps taken by the agency in the interim.

4. Labor Relations

• What happened? In a series of swift and game-changing moves, President Trump summarily dismissed two key figures at the National Labor Relations Board (NLRB). While the General Counsel Jennifer Abruzzo’s dismissal was widely anticipated, the unprecedent firing of Board Member Gwynne Wilcox raises significant procedural and policy questions for the federal labor agency in the short term and beyond. President Trump also just appointed William Cowen as NLRB Acting General Counsel on February 3.
• What’s next? We expect that in the coming weeks and months Trump will appoint and the Senate will approve at least one more NLRB Member, though Wilcox has already launched a legal challenge to her termination. As the Board takes shape, we also expect a big shift away from its recent pro-labor stance. We expect the Board to expand employer authority over employee activities while limiting the scope of federal labor law to exclude gig workers and independent contractors. Here’s everything you need to know about the current state of the NLRB and your best practices moving forward.

5. Artificial Intelligence

• What happened? The White House enacted a sweeping shift in AI policy by rescinding President Biden’s executive order on artificial intelligence and announcing a massive private-sector-led AI infrastructure investment. The moves signal a sharp departure from the prior administration’s regulatory approach, replacing AI oversight with a focus on economic growth and national competitiveness. President Trump also appointed David Sacks as the new “AI & Crypto Czar.” Sacks – a Big Tech veteran, Silicon Valley insider, and vocal advocate for deregulation – will likely oversee a seismic transformation in how AI will be regulated and integrated across industries.
• What’s next? Employers and AI industry leaders must now deal with an evolving landscape where AI regulation is loosened and investment in AI development is skyrocketing. The emphasis will be on innovation and industry collaboration, and for employers, this means a flurry of new workplace AI tools that you’ll need to track and integrate. But you should also note that we’re starting to see a patchwork of various state and local laws regulating the use of AI in the workplace. Click here to review all of the laws, regulations, guidance documents, and court action that impact employers and their use of AI.

Conclusion

President Trump’s second term kicked off at a rapid pace, and we expect to see a lot more to come during his first 100 days and beyond. We will continue to monitor developments related to all aspects of workplace law.

Courtesy of Fisher Phillips

Workplace Immigration Officials Extend “Relaxed” Remote Work I-9 Rules Into 2022

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.   

Florida’s New Mandatory E-Verify Law Will Require Changes To Hiring Practices In the New Year

Beginning on January 1, 2021, Florida’s new “Verification of Employment Eligibility” statute will require many employers to use the federal E-Verify system before hiring any new employees. This new law could force significant changes to your hiring practices. What do Florida employers need to know about this significant development?

Legislative Background And Campaign Promises

E-Verify was introduced by the U.S. Department of Homeland Security in partnership with the Social Security Administration as a voluntary program. However, many employers in Florida will soon be faced with mandatory implementation of the web-based system to confirm employment eligibility for new hires.

Under preexisting federal law, all employers are required to complete an I-9 Employment Eligibility Verification form for each new employee to verify the identity and eligibility of that employee to work in the United States. Since its inception in 1996, most states have also encouraged voluntary participation in the federal government’s E-Verify program, which compares information supplied by an employer from its Form I-9 to information available to the federal government from various databases. Only nine states require E-Verify for all employers.

Since 2011, E-Verify has been required on all state projects in Florida. However, following a nationwide trend of growing support for the federal employment verification system, Governor Ron DeSantis signed Florida Senate Bill 664 on June 30, requiring all public employers – as well certain private employers – to use E-Verify beginning January 1, 2021.

As a gubernatorial candidate in 2018, DeSantis vowed to mandate the use of E-Verify among all employers in the state. This was controversial and opposed not only by some immigrant advocacy groups, but also by business groups — especially those in agriculture, construction, and hospitality. Following Governor DeSantis’ signing of the bill, a spokesperson explained, “Given the high unemployment rate due to COVID-19, it is more important than ever to ensure that the state’s legal residents benefit from jobs that become available as Florida continue to reopen in a safe and smart manner.” While the measure expands the use of E-Verify, Florida does not join the states that require use of the system in hiring practices for all employers. 

What Does the New Law Require?

There are varying obligations for employers depending on whether they are public or private, and whether they contract with the state or receive certain state incentives.

Public Employers And Private Employers Who Contract With The State Or Receive State Incentives

Once in effect, every Florida public employer, along with their private contractors and subcontractors, must enroll in and use the E-Verify system to confirm the eligibility of all employees hired after January 1, 2021. No public contract can be entered into without an E-Verify certificate.

Any contractor who hires a sub must require an affidavit stating that they don’t employ, contract with, or subcontract with any unauthorized immigrants. Importantly, this affidavit provides for all newly hired employees, not just those working on government contracts. This affidavit must be kept by the general contractor for the duration of the contract and all contractors will need to go through this process for each public project.

If a public employer has a good faith belief that these requirements have been knowingly violated, it can terminate the contract, without liability for breach of contract, or demand that its contractor terminate any noncompliant subcontractors. Terminations for purported violations of these requirements may be challenged in court within 20 days of the date of termination. However, if the contractor is in fact found guilty, the contractor will be barred from public contracting for at least a year after termination and may be held liable for any additional costs associated with the termination.

In addition to private employers who contract with public entities, these new E-Verify employment eligibility requirements will also apply to employers who receive taxpayer-funded incentives through the state Department of Economic Opportunity. Beginning on January 1, 2021, the DEO will not approve an economic development incentive application unless the application includes proof that the applicant business is registered with and uses the E-Verify system in the eligibility verification process for all newly hired employees. Should the DEO make a final determination that an awardee has failed to be compliant, the employer will be forced to repay all moneys received by the DEO as an economic incentive.

E-Verify For All Other Private Employers

For private employers who do not contract with the state or receive state incentives, Florida law will now require these private employers to use E-Verify, or alternatively use the Form I-9 and maintain copies of the documents used to complete the Form for three years (which is optional under federal law). If the E-Verify certificate or Form I-9 documentation is requested by certain parties (such as the State Attorney, Attorney General, Department of Law Enforcement, etc.), the employer must provide them with proof of the employee’s eligibility.

Private employers accused of non-compliance will be provided notice from the DEO and the employer must terminate any unauthorized employees, begin complying with the legal procedures, and respond with an affidavit of compliance within 30 days. Failure to do so risks potential suspension of existing licenses until the employer provides such an affidavit. If an employer fails to properly respond to a DEO notice three times in any 36-month period, it could permanently lose its business licenses and may be liable for additional civil or criminal liabilities.

The E-Verify requirements will also go into effect for the private sector on January 1, 2021. This new law will not apply to any employees that were hired before then. However, any existing employment contracts that need to be renewed or extended after that date will be required to go through the verification process without going through the E-Verify process.

Ensuring Compliance Readiness Is The Next Step for Employers

Public employers in Florida and those who bid on contracts with the state should be ready to comply with the new law by updating their onboarding and new hire practices. Private employers who choose not to use E-Verify should continue to complete and maintain Form I-9 verification records, including copies of the documents that were reviewed. The enforcement procedures under the new E-Verify mandate are significant, and failure to comply can seriously impact your ability to do business within the state.

Notably, government scrutiny of employment verification records at both the state and federal level has the potential to increase when the COVID-19 pandemic subsides. You can prepare for government reviews by periodically auditing your employment verification records to ensure you have been completed fully and properly.

FAQs For Employers Navigating Relaxed I-9 Verification Requirements

Although the Department of Homeland Security (DHS) recently relaxed I-9 requirements for employers operating remotely as a result of the COVID-19 crisis, employers are still left with some questions on how to meet their obligations in this uncertain time. 

The Basics: What Are The New Rules?

Under federal guidance, employers are temporarily no longer be required to review an employee’s identity and work authorization documents in the employee’s physical presence.  Instead, inspection of these documents can be conducted remotely (e.g., by video, fax, or email).  

According to the U.S. Citizenship and Immigration Services (USCIS), “if employers are performing inspections remotely (e.g., over video link, fax or email, etc.) they must obtain, inspect, and retain copies of the Section 2 documents within three business day of hire. In addition to completing Section 2, Employers also should enter ‘COVID-19’ in the Additional Information field.”

Then, when “normal operations resume,” all employees whose documents were presented via remote verification must, within three business days, undergo the required “in-person” examination of documents. The person conducting the physical examination should write the words “documents physically examined” in the Additional Information box in Section 2, and should include their name and the date of inspection.  

It is important to keep in mind that the DHS’s relaxed requirements apply only to employers who are operating remotely. According to the guidance, if there are employees physically present at a work location, then you must follow the normal in-person physical inspection rules. However, if newly hired employees or existing employees of an employer who still has employees present at a work location are subject to COVID-19 quarantine or lockdown protocols, “DHS will evaluate this on a case-by-case basis.”

Frequently Asked Questions About The New I-9 Guidance

While employers appreciate the DHS’s temporary relaxation of the in-person document inspection rules, some questions are not addressed by either DHS or USCIS. Here are the most common questions we have seen and the best practices to follow.

1. How is an employee expected to fill out Section 1?
   The announcement makes clear that employees are still required to fill out their section (Section 1) of the I-9 no later than the first day of employment. But DHS’s announcement is silent on how employees will complete Section 1 of the I-9 if they are operating remotely.
   
   You can presumably email the Form I-9 to the employee, have the employee complete Section 1, sign, date, scan and email the completed Section 1 back to you. For employees without a home printer and/or scanner, you should consider having them provide Section 1 in the same way they provided their documents (by video, smart phone photo, fax or other electronic method).
   
   Once operations resume, the employee should bring the original signed Section 1 to your worksite.
   
   
2. If we have a policy of not keeping copies of documents presented as part of the I-9 process, what should we do with our copies of the remotely provided documents after the in-person inspection occurs?
   As noted, the announcement clearly requires employers conducting remote document reviews to keep copies of the documents provided to them (for example, by taking screen shots, pictures of the documents by camera phone, and other methods). But the announcement is silent as to what you should do with those electronic copies of documents after the in-person document review, in the event you do not, as a policy, keep copies of documents submitted as part of the I-9 process.
   
   The safest course of action is to print out the electronic copies of documents received remotely. But instead of keeping them with the employee’s I-9, keep them in a separate file until DHS clarifies what should be done with them.
   
   
3. Is the employee required to bring in hard copies of the same documents they provided remotely?
   The government has made it clear that you are not supposed to request or even suggest that employees provide any specific document or documents when filling out a Form I-9. Here, the announcement seems to assume employees will bring in for inspection the same document or documents they provided remotely, but does not specifically say so. 
   
   Because the employee has already made their choice of documents when they provided them remotely, DHS may find it reasonable for you to ask to see hard copies of the same document(s). If the employee refuses or has lost one or more of those document(s), you may consider filling out a new Section 2 and attaching it to the original Section 2, with a brief explanation in the Additional Information field.
   
   
4. What triggers the determination that “normal operations” have resumed?
   The announcement states that within three business days after you resume “normal operations,” the in-person document review must occur. But what if you implement a partial resumption of operations, scaled back operations, or even just start a test run of operations?  What if you call some of your employees in to your worksite in preparation for returning to normal operations? 
   
   The recommended approach is to determine if the employee is going to be required to physically come into the office as part of the resumption of operations, whether to attend orientation, pre-employment training, or other reason. If the employee is scheduled to come in to the workplace for only a day or two, or even for only a few hours, you should instruct them to bring their original I-9 document(s) with them, and you should conduct the in-person inspection at that time. 
   
   In short, rather than bank on an argument that Section 2 was not filled out late because “normal operations” had not yet commenced, you should err on the side of doing the document inspection as early in the process as possible (on a case-by case basis), rather than later.

An Employer Guide To Navigating Newly Revived No-Match Letters

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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ICE Turns Up The Heat On Employers This Summer

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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E-Verify to Go Dark This Weekend

The federal government’s electronic employment verification system will be unavailable this weekend due to system upgrades.

U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will be shut down from midnight March 23 to 8 a.m. March 26 Eastern Time. E-Verify users are encouraged to complete and close any open cases prior to the system shutdown.

The Department of Homeland Security and the Social Security Administration will not be able to assist employees with case resolution issues during the outage. myE-Verify, the system’s resource portal for workers, will also be unavailable.

“During the suspension, employers will not be able to access their E-Verify accounts and employees will be unable to resolve E-Verify tentative nonconfirmations,” said Michael H. Neifach, an attorney in the Wahington, D.C., regional office of Jackson Lewis. “The E-Verify outage does not change any Form I-9 requirements,” he added. “Form I-9s must be completed no later than three business days after employment.”

To minimize the shutdown’s impact, the agency stipulated:

• The three-day rule for creating E-Verify cases is suspended for cases affected by the outage. If an employee’s first day occurs between March 20 and March 26, employers will have until March 29 to create an E-Verify case.
• Workers will have two additional federal working days to resolve tentative nonconfirmations.
• Workers will have an additional two federal working days from the date listed on their referral date confirmation to contact the agencies.
• Employers may not take adverse action against an employee because the E-Verify case is in interim case status or during the extended interim case status due to the suspension. Federal contractors with E-Verify clauses should contact their contracting officer to inquire about extending contractor deadlines.

USCIS is prepping for a move to an upgraded user interface later this month. Enhanced features are expected to include a streamlined process for creating and managing cases, modernized data-matching to reduce tentative nonconfirmations, and improved data integrity.

USCIS Releases New I-9 Form

On July 17, 2017, the USCIS announced the release of a revised version of Form I-9, Employment Eligibility Verification.

Key information:

• The revised version may be used immediately, but it must be used no later than September 18, 2017.
• Employers can continue using Form I-9 with a revision date of 11/14/16 N through September 17, 2017, however we recommend that you destroy any existing versions and begin using the new version immediately.
• Employers must continue following existing storage and retention rules for any previously completed Form I-9.

The changes below also can be found in the newly revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Revisions to the Form I-9 instructions:

• The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been changed. Its new name is Immigrant and Employee Rights Section (IER).
• The instructions on Section 2 have been slightly changed to read: “Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee’s first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

• The Consular Report of Birth Abroad (Form FS-240) was added as a List C document and all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined.
• The List C documents have been renumbered, except for the Social Security card, which remains #1 on the list.

If you have any questions about the new form or would like us to send you a copy of the new I-9 form and instructions, please contact our office.

Expired Form I-9 Still in Effect

The current version of the Form I-9, the most fundamental tool used to determine if applicants are eligible to work in the U.S., expired on March 31. Until further notice, though, employers should keep using the expired form until the recently proposed “smart” I-9 is in effect, according to U.S. Citizenship and Immigration Services (USCIS).

Dave Basham, a senior analyst in the verification division at USCIS, has been answering the following question a lot recently: “What will happen on March 31, 2016, when the Form I-9 expires?” Basham says: “Employers should continue to use the current version of the form as it continues to be effective even after the OMB [Office of Management and Budget] control number expiration date March 31, 2016, has passed.”

On March 28, 2016, USCIS published a second round of proposed changes to the form in the Federal Register, giving the public 30 days to comment. Once the comment period ends April 27 and comments are considered, USCIS may make further changes before sending the proposal to OMB, which will need to review and approve it. The form will be available for download at www.uscis.gov upon being approved.

“Employers must continue to use the current version of Form I-9 until the proposed version is approved and posted on the USCIS website,” said Amy Peck, an immigration attorney in the Omaha, Neb., office of Jackson Lewis.

The proposed, revised form is designed to address frequent points of confusion that arise for both employees and employers.

The proposed changes specifically aim to help employers reduce technical errors for which they may be fined, and include:

• Validations on certain fields to ensure information is entered correctly. The form will validate the correct number of digits for a Social Security number or an expiration date on an identity document, for example, Fay said.
• Additional spaces to enter multiple preparers and translators.
• Drop-down lists and calendars.
• Embedded instructions for completing each field.
• Buttons that will allow users to access the instructions electronically, print the form and clear the form to start over.
• A dedicated area to enter additional information that employers are currently required to notate in the margins of the form.
• A quick-response matrix barcode, or QR code, that generates once the form is printed that can be used to streamline audit processes.
• The requirement that workers provide only other last names used in Section 1, rather than all other names used.
• The removal of the requirement that immigrants authorized to work provide both their Form I-94 number and foreign passport information in Section 1.
• Separating instructions from the form. Employers are still required to present the instructions to the employee completing the form, however.
• The addition of a supplement in cases where more than one preparer or translator is used to complete Section 1.

The proposed changes will have far-reaching impact because all employers are required to complete and maintain the Form I-9 for each employee hired to verify their identity and authorization to work in the United States.

Tips To Prepare Your Company For An I-9 Audit

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.