With all the furor in the media with regard to the "Border Wall" and United States immigration policy, Employers are losing sight of an even more prominent threat. The Homeland Security Investigations Unit (HSI), which is the investigative agency within the United States Immigration and Customs Enforcement Group and responsible for Form I-9 compliance, has ratcheted up Inspection Notices for Employers. In point of fact, since the beginning of the current Government Fiscal Year, the HSI has served well over 2,800 Notices of Inspection and made thirty-two (32) arrests in connection with onsite Form I-9 compliance. It should be noted that in the last Fiscal Year, the same entity initiated 1,360 I-9 Audits and obviously that is showing a tremendous increase. While the Border Wall and overall immigration policy may eventually impact the Federal Budget and tax dollars, a more important concern for Employers is the HSI "knocking on the door right now!"
What actions must an Employer take to protect itself during an I-9 Audit with its potential for civil and criminal penalties:
- Conduct an I-9 Self-Audit as quickly as possible to assess current compliance and address errors that must be corrected. The current three (3) page Form may look simple at first glance, but the potential for errors creating technical and substantive violations is a potentially serious problem.
- Develop a game plan for when the government "knocks on the door." Who is going to meet with them and control the investigation?
- Investigate and document that those individuals who are tasked with current I-9 compliance and retention have clearly established internal procedures on who verifies and performs I-9 Audits and where and how those documents are retained.
While Employers may believe from a time and cost perspective that Form I-9 compliance can be totally contained in-house, after the Self-Audit, if problems have been ferreted out, it may be in the Employer's best interest to consult with Labor Counsel to make sure the problems are eradicated or appropriate defenses created.
The investment of time, effort, and resources to assure From I-9 compliance before the government arrives, makes not only good business-sense, but dollars and cents as well!
Questions? Contact attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at [email protected].