Wright Lindsey Jennings
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Donald Trump’s victory in November may have generated uncertainty and questions on what to expect. But there is one area in which the President-elect has been clear and everyone recognizes is slated for change – immigration. While Mr. Trump’s proposal for “an impenetrable wall” along the southern border has garnered the most attention, his other immigration policies likely will have a more direct and immediate impact for employers.
As an Arkansas employer you may be thinking, “Well, I don’t have any foreign workers, so changes in immigration policy won’t affect me, right?” Wrong.
Mr. Trump has consistently stated that he wants to deter illegal immigration by “turning off the jobs and benefits magnet” that attracts foreign workers. In other words, he wants to crack down on businesses that employ individuals without work authorization. Practically speaking, this likely means more worksite-enforcement visits from Immigrations and Customs Enforcement (ICE) to check whether there are workers employed without work authorization. Such visits commonly occur by ICE agents who arrive unannounced (or with very little notice) seeking to audit the company’s I-9 forms. To accomplish his goal of increased enforcement, Mr. Trump has proposed tripling the number of ICE agents. Mr. Trump has also suggested that E-Verify should be mandatory for all employers. But keep in mind that E-Verify is separate from Form I-9; it does not replace it. In short, employers need to be prepared for an increase in I-9 audits by a beefed-up ICE agency.
During an ICE audit, employers can find themselves in trouble not only if they have unauthorized workers, but (more commonly) because they did not properly prepare or maintain their I-9 forms for each employee. And penalties can be steep – fines generally start around $200 and go up to several thousand dollars per offense. In 2015, a California company was fined over $600,000 because it failed to properly complete I-9 forms for its employees.
So what should employers do to prepare for a possible audit? Like most things, you need to prepare. You definitely do not want to wait until ICE is on-site demanding to see all of your I-9 forms. Therefore, employers would be wise to conduct an internal I-9 audit to identify and correct potential problems now. In fact, an annual internal I-9 audit is on ICE’s list of “Best Employment Practices.” If you need another reason to conduct an internal audit, keep in mind that you will be given a safe harbor if ICE discovers an unauthorized worker, but only if you have properly prepared and maintained your I-9 forms.
Unfortunately, self audit can create more problems when employers choose to perform the audit themselves and then commit mistakes that lead to further violations. Common mistakes include filling out new I-9s for employees and throwing the old ones away, making revisions to I-9 forms without signing and dating the change, and preparing new I-9 forms to correct mistakes and backdating them so they appear to be timely. Even if these mistakes are “innocent,” they can lead to stiff fines. Therefore, the better practice may be to engage an outside firm to perform the audit, especially if it is the company’s first audit or if the company suspects there may be issues. Employers can also use an external audit as an opportunity to update I-9 policies and to train compliance employees on proper procedures to prevent future mistakes.
Conducting an internal I-9 audit is an easy step employers can take to ensure they are complying with both current immigration law and likely changes by the Trump administration.