Employers Beware of ICE's I-9 Campaign

In the spring of 2009, Immigration and Customs Enforcement (ICE) announced that it would begin focusing its interior immigration enforcement efforts on targeting employers who knowingly hire illegal aliens. Civil and criminal penalties may be imposed for violation of employment eligibility verification laws and regulations. A compliance plan is the best way for employers to avoid these consequences.

Here are a few tips:

• Conduct periodic I-9 audits. Employers frequently violate the law by failing to complete an I-9 at all, or by failing to ensure that each section of the I-9 is completed properly. To counteract these errors, periodically audit I-9s, correcting those with errors and missing information, retaining the original I-9s, and initialing changes with the date of the correction. It is a good idea to have an immigration law specialist conduct an annual audit.
• Develop I-9 policies and training. Develop a policy that expresses commitment to compliance with immigration laws and regulations, and also provides detailed instructions on completing each section of the I-9 and on I-9 retention requirements. Designate employees responsible for completing I-9s and ensure that they are adequately trained on how to complete I-9 forms.
• Create an I-9 recordkeeping system. Employers must keep I-9s for three years from the date of hire or for one year from the date employment terminates, whichever is longer. Devise a calendar system to purge I-9s that fall outside this time frame. Further, given that employers subject to a notice of inspection of I-9s have only three days to produce I-9s, maintain I-9s separately from employee personnel files.
• Create a reverification system. I-9 reverification obligations are triggered when temporary employment authorization expires or when an employee presents a receipt for an acceptable I-9 document.

Avoid discriminating in carrying out employment eligibility verification obligations. Do not be overzealous in complying with employment eligibility verification rules. Under the Immigration Reform and Control Act, employers may not refuse to hire someone because of their national origin or citizenship status, nor may they discharge workers on those grounds. Employers are also barred from requesting specific documents for I-9 purposes and cannot refuse to accept documents for I-9 purposes and cannot refuse to accept documents that appear genuine on their face.