2.26.2013

Old Compliance Warnings Renewed in Light of Immigration Reform

In recent weeks, there have been extensive and serious discussions about an overhaul of the federal immigration system. While proponents of the reform disagree on many issues, they agree that reform must be accompanied by a more effective and efficient employment eligibility verification system and stronger workplace enforcement.

The leaked White House immigration reform plan envisions the phased-in use of an employment verification program that will become mandatory for almost all employers in the course of four years. Whether this program will be an expansion of the existing E-Verify program or a brand new one, employers should be prepared for a period of adjustment for proper training of human resources staff and for working out any system problems.

In addition, employers should be more vigilant about their compliance with employment eligibility verification laws and be prepared for increased audits and penalties for knowingly hiring unauthorized workers, failing to verify a worker’s employment eligibility, or otherwise making mistakes when completing Form I-9. This course of action should not come as a surprise. For some time now, the government’s preferred method of workplace enforcement has been the audit of Form I-9 records. The number of employers who are audited continues to increase, as do penalties for both substantial and technical violations. (1.) Employers should keep in mind the following:

An ounce of prevention is worth a pound of cure: If human resources staff has not received adequate training on how to complete Form I-9, it is necessary that they receive it as soon as possible. Ensuring that the form is filled out correctly and timely will prevent costly mistakes.

Expect the worst and prepare: An employer has very little time to prepare for an audit of Form I-9 records by U.S. Immigration and Customs Enforcement (ICE). Typically, ICE will allow three business days for the employer to collect and hand over the records. Often, ICE will request supporting documentation also, such as a copy of the payroll, list of current and terminated employees, and business licenses. Employers should have a system in place that enables quick access or generation of these documents and lists. That way, it can use its time for reviewing I-9 records, complete potential corrections if needed, and assess and prepare for any potential liability.

Employers are advised to proactively conduct self-audits with or without the assistance of an immigration attorney. They should review and revise their Form I-9 and immigration compliance policies, and ensure that their human resources representatives are well trained, not only in routine matters, but also on how to respond to audits and internal reports of violations. While conducting self-audits, employers should be careful not to cause additional problems, such as using whiteout, correction tape or black marker, re-verifying an expired “green card,” or being overly zealous and over-documenting employment eligibility. When in doubt about best compliance or correction practices, ask for help.

Know how to respond to the potential results of an audit: If an employer has been selected for an I-9 audit, the administrative inspection process is initiated through a Notice of Inspection (NOI) by ICE, compelling the production of the employer’s Form I-9 records. Upon review of the records, if ICE finds technical or procedural violations, such as failure to provide an employee’s maiden name, address, or the name of the translator or preparer of the form, the employer is given ten business days to make corrections. The employer will be given time to correct any technical violations, typically 10 days. It should do so immediately. Any technical violations that remain uncorrected will have the same weight as any substantive violations. Substantive violations include failure to fill out Form I-9, failure to review and verify employment eligibility documents, etc. ICE will notify the audited party, in writing, of the results of the inspection. Monetary fines will be assessed for all substantive violations and any technical violations that remain uncorrected and ICE will issue a Notice of Intent to Fine. The employer may engage in settlement discussions with ICE or bring its case to the Office of Chief Administrative Hearing Officer for further review.

In sum, it is expected that government efforts to enforce employment eligibility verification laws and regulations will be a central part of the new immigration reform. Employers should follow these developments closely because they will affect employment practices for all regardless of whether foreign nationals are currently on a company’s payroll.

(1.) The U.S. Immigration and Customs Enforcement (ICE) has indicated that Form I-9 audits of employers increased from 250 in fiscal year 2007 to more than 3,000 in fiscal year 2012. The total amount of fines assessed has grown to nearly $13 million in fiscal year 2012 from $1 million in fiscal year 2009. Furthermore, the number of company managers arrested as part of criminal investigations resulting from Form I-9 audits has increased.


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