New Data Shows I-9 Compliance Inspections Continue to Rise

New Data Shows I-9 Compliance Inspections Continue to Rise

Government audits of I-9 records are likely an inevitability, attorney says

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Federal probes for undocumented immigrant workers continued to rise last year, according to new data from the main investigative branch of Homeland Security. The information should resonate with  businesses concerned about I-9 compliance.

The on-site inspections – dubbed “silent immigration raids” by some – are a cornerstone of the Obama administration’s immigration policy and have increased dramatically in recent years, with agents carrying out more than 3,100 investigations in 2013.

The US Immigration and Customs Enforcement agency (ICE) checks specifically for proper retention of I-9 forms – a document employers are obligated to use as a means of verifying an employee’s identity, as well as their eligibility to work in the country.

Employers Should Operate as if I-9 Audit is Inevitable

“I-9 enforcement is at an all-time high,” said immigration lawyer Gretel Ness, who has advised companies before and during  I-9 compliance investigations. “It's now a question of when, not if, an organization will be audited.”

In 2013, ICE initiated more than 3,900 cases, which lead to 3,127 I-9 inspections – only slightly higher than the roughly 3,000 inspections carried out in 2012. But inspections have almost tripled in frequency since 2009 – part of the government’s plan to “protect employment opportunities for the nation’s lawful workforce.” ICE has pledged to continue increasing inspections and enforcement to ensure employers "play by the rules."

In 2013, ICE initiated more than 3,900 cases, which lead to 3,127 I-9 inspections.

After receiving tips from other government agencies or disgruntled employees, ICE agents are known to stake out parking lots or show up at businesses unannounced to give management 72 hours’ notice before an inspection. The investigations have produced more than $91 million in fines in the past five years alone, and businesses as notable as the Chipotle Mexican Grill restaurant chain have been forced to lay-off hundreds of employees.

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ICE insists that its investigations are meant to target businesses that “knowingly employ unauthorized workers,” but employers can be non-compliant without knowing it. Even if an employee presents legitimate work documents when they are hired, a business can face issues if the document expires without anyone noticing.

How to Use Software to Ensure I-9 Compliance

Ness, from the Oregon-based Parker Butte and Lane firm, suggests “adopting an internal system that automatically flags for you when a document is about to expire.”

The internal system would be part of a robust I-9 compliance policy that clearly articulates the company’s stance against hiring undocumented workers. Without such a policy, Ness says, employers can become inconsistent and put themselves at risk of discrimination claims.

Mitigating Risk of Discrimination Claims

Given the spike in I-9 compliance inspections, some employers are wary of fines that could devastate their business, so they go beyond the regular screening process – which could be problematic if the new employee believes they are being heavily scrutinized because of their ethnicity.

“Employers will think, ‘If I put down more [documents], then that’s a good thing.’ But that could also be a basis for a claim of discrimination,” Ness said. “We always caution employers that whatever they decide to do, they have to be consistent across the board.”

Conducting an annual internal audit of I-9 records with an immigration lawyer or an HR rep with specific training will make for  a "smoother" process in the event of a government audit, Ness said.