Feds announce new I-9 audits and fines
November 25, 2009 by Jim GiulianoPosted in: Employment law, Records documentation, Special Report
The first round of employer audits for I-9 infractions apparently went so well that Immigration and Customers Enforcement has decided to extend the audit program and reveal the fines for violations.
ICE’s original plan called for 650 employer audits. The agency has completed about half of those and so far has categorized 16% of I-9s as “suspect and fined 61 employers a total of $2.3 million; 267 more employers are still scheduled for audit under the original program. Now, the agency is gearing up to audit 1,000 more employers, according to an agency announcement.
Responding to a Freedom of Information Act request by the American Immigration Lawyers Association, ICE disclosed its factors for assessing fines when it finds I-9 violations. In the past, ICE had calculated fines within the legal limits (up to $1,000 for the first offense and $2,500 for a knowing violation) based on five factors: business size, good faith, seriousness, employment of unauthorized aliens, and history of compliance.
The new ICE factors:
- Knowing hire or continuing to employ vs. paperwork violations
- First, second, or third offense
- Percentage of total reviewed I-9s that have violations
- Other factors such as business size, good faith, seriousness, unauthorized aliens, and history
Some ICE examples of how employer fines would be set using the factors:
- Employer A with 25% of I-9s containing paperwork violations and no previously fined violations would be fined $440 per violation, which would be adjusted up 5% for being a large employer and down 10% for showing good faith with a good history, for a net of $418 per violation.
- Small Employer B with 5% of I-9s reflecting knowing employment of unauthorized workers (including “constructive knowledge”) might only be fined about $300 per violation.
Tags: audit, I-9, ice, Immigration and Customers Enforcement
November 30th, 2009 at 12:04 pm
Jim,
Did the information include definition of large vs. small employer, examples of: good faith, seriousness, aliens and history?
November 30th, 2009 at 1:13 pm
Cha-Ching for the feds! Another citizen squeeze hits it mark!
November 30th, 2009 at 5:04 pm
Like “mkh,” I’m curious about examples. Does anyone happen to know what qualifies as a “paperwork violation” that would lead to a fine? I’ve heard the horror stories of auditors coming in and picking on things as small as ink color, but in my own experience they’re looking for signatures, dates, etc. Does anyone have any specifics or insight?
December 1st, 2009 at 8:19 am
Ink color??? Does that make a difference?
December 1st, 2009 at 8:54 am
Ink color – agencies prefer black or dark blue ink, but I doubt if that gets you fined. Missing data will.
Go to the ICE website – I could not find an “auditor guidelines”, as some agencies post.
http://www.ice.gov/pi/news/factsheets/worksite_cases.htm
Don’t cut corners, and ensure an internal HR audit to preclude a staff person taking bribes, over emphathetic with applicants or just not doing their job properly. Watch out for staff using “pre-printed” out of date forms with old data. Train your staff to identify phony ID’s and how to review the data.
December 1st, 2009 at 8:56 am
You can find all the violations on the US government website along with the I-9. Violations can include things like: expired identification, verification date longer then three days of the new hire completing the paperwork, form being filled out incorrectly, or no I-9 for current employees.
December 1st, 2009 at 9:21 am
To Harold’s point…..we have been recommending using the ID Checking Guide Books that have been around for at least 30 years and updated yearly – there will be no question about if the document is a fake or not using these books. No more excuses by using that old line.
http://www.driverslicenseguide.com/
December 1st, 2009 at 9:36 am
WE copy and keep our ID documents. Do you think this is a wise practice?
December 1st, 2009 at 9:59 am
Cindy, not being a lawyer but ….maybe it is a two sided coin…if you are legitimately doing your due diligence and verify the ID and background as best you can before hire then having a copy of the documents you relied upon would support your contention you did what you could given all the resources available. Imagine relying on memory 6 months or two years later about how you arrived at your conclusion that an employee was hirable…and not being able to prove it.
On the other hand if you have overzealous enforcement and your records are seized and the government uncovers the use of very cleverly constructed fake ID’s – will they still use them against you saying you “should” have known better?
Maybe that falls under good faith efort and may also depend on how bad the feds really want to ding your company. I suspect it is better than having no records at all and no policy.
Doing a good job at it and being diligent would indicate keeping copies securely filed. If this is wrong someone should let us know. Thanks.
December 1st, 2009 at 10:04 am
We have been using E-Verify since it’s inception (we are based in Arizona) and love it. I would recommend using it even if you are not required to do so. It is very easy to use and takes very little time. We have seen some very sophisticated ID documents come across that were caught by E-verify. It is the easiest safest way I know of to stay in compliance.
December 1st, 2009 at 12:12 pm
In previous audits I’ve been involved in, I’ve found that as long as you had copies for ALL employees it was to our advantage. We also made notes as to any conerns we noted on the ids, and what we did to investigate – ie if it was a state license that we were unfamiliar with, or it it was some other odd form of id not in the booklet, etc…. Consistency is key.
One sticky spot that many miss is the maiden name for females. They were looking for that missing. Also be careful of unchecked boxes! Again, easy for the employee to miss, but whoever is doing paperwork with them needs to keep their eyes open.
December 1st, 2009 at 12:36 pm
Mark and others: The current administration and DOL Secretary Solis have repeatedly stated they believed fines should be punitive and large to punish companies. From what has been written and stated by the various department heads, expect to be punished, and they do not believe in “a good faith effort”. It is certainly that way with OSHA in the past few months.
The administration fully expects us to know our jobs and do it, resources available is not their problem but the company’s responsiblity to the law.
December 1st, 2009 at 2:02 pm
Were do you start with the E-verify process? I’d like to look into that.
December 1st, 2009 at 2:11 pm
Cindy,
Use link below
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=6a0988e60a405110VgnVCM1000004718190aRCRD&vgnextchannel=6a0988e60a405110VgnVCM1000004718190aRCRD
However, you quickly learn that although E-Verify will help eliminate the possibility of employing illegals, it does not remove the I-9 Form requirements or fines associates with it being completed correctly.
December 1st, 2009 at 2:31 pm
We have a “paperless” hiring suite included in our office management software, so all our I-9’s are completed online and signed electronically. We don’t keep copies of the ID documents, but all our managers do use the I-9 Handbook to look up pictures of documents they are unfamiliar with. We are a seasonal business, and do a lot of re-hiring, but we require each employee to complete a new I-9 each time we rehire them because overall it is more efficient. Although we haven’t had the experience of being audited, we feel ready to deal with it.
Does anybody else use online I-9’s and electronic signatures?
December 1st, 2009 at 3:04 pm
We have been using e-verify for quite some time and we have had some ID’s that look great turn out to be fake. We even managed to have a social security number flagged and it turned out that the social security office issued this US cititzen (born and raised here) with the wrong number. Now this person has been working for at least 10 years, yet no one else has ever picked this up. They have been filing their taxes using this wrong number and the IRS didn’t even pick up on it. “good faith” is probably using this e-verify system, but ICE will probably pick apart every detail on the written copy. So be careful!
December 1st, 2009 at 3:55 pm
At every plant that I have taken over the HR responsibilities I have found I-9 problems. I was hired at one employer because they had failed an I-9 aduit and fired their HR Manager. I have had two audits and never had an issue. I don’t understand why completing a I-9 seems so difficult for many in HR. I think it’s just sloppy poor workmanship.
December 2nd, 2009 at 7:43 am
to Jeff:
Yes, I found this to be the case in places that I’ve gone into also. We are a large automotive dealership in Southeast PA. I’m thinking that the chances of us getting I-9 audited are pretty slim. What do you think? Do you think certain areas of the country (or types of industrys) are targeted?
December 8th, 2009 at 9:06 am
When I became HR Manager at my present job I went through all the I-9s and found several employees I-9s were not signed by the person who filled them out. What should I do with these since I was not here to verify their documents. There are copies of their docs in there file. Can I sign the I-9s or should I have them fill a new I-9 out and re-verify new documents. The Handbook does not say anything that I have found about what to do. Please advise
December 9th, 2009 at 8:40 am
Gary – you should only sign I-9 documents that you personally review the orginal documents. Don’t accept copies of documents. I suggest redoing the I-9’s with your employees and staple the orginal I-9 to the new ones that are completed correctly.
December 9th, 2009 at 9:02 am
Gary – As an HR Recruiter specially trained in detecting fraudalent documents and stolen identities when conducting the I-9 process here is my word of advice, you should have your employee(s) complete a new I-9 and reverify their documents, you may leave the old I-9 attached just in case someone questions your reason for re-verifying. Please note that is very important that employees avoid making mistakes when completing their I-9’s and if mistakes are made they should be corrected and initialed. Employees complete section 1, you should direct them but NEVER suggest what information to write or what type of supporting documentation to give you. If they are unsure, you should refer them to the list of documents listed behind the I-9. Once you have reviewed the documents and they are acceptable forms of Identification you make copies of both front and back, initial the copies and attach to the completed I-9, then you complete secion 2 the Review and Verification and Certification part.
The I-9 process is very simple, but unfortunately some employers fail to follow the correct process. Good luck
January 21st, 2010 at 9:44 am
We have managers out of state who send us the completed I-9. They fax or email I-9 sometimes with copies of documents. If they do not fill in their address or date of hire, can I fill that in without initialing? I know I am not to sign if I do not personally see documents. Are there any exceptions?