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The five most common assumptions employers make about I-9’s can cost them thousands!

Jan 21st, 2020 • Jacop Lucas

Google is littered with great articles and checklists that detail the most common mistakes made when completing the Form I-9.  These internet gems are great for identifying specific errors that might cost your companies thousands in fines if investigated by Immigration and Customs Enforcement (ICE).  However, in my experience working with companies on I-9 compliance, an organization’s risk starts with the leadership and their lack of concern or urgency when with comes to managing I-9 compliance.  Companies can correct errors found on their forms, but if there isn’t a consistent process with a high level of enforced accountability, costly mistakes will continue to be made. This will send a message to ICE that I-9 compliance is not that important.   

Why is this important?  Penalties for violations found on I-9s that were not completed properly can range from $230 – $2,292 depending on the number of mistakes found per form. Then, the employer is fined per each form found with a substantive error.  On average, we find that between 45% – 70% of audited audited have multiple errors, with at least one substantive error.  I’m not going to get more technical than this in this article, however, I am sure you can deduce that this exposure can be costly. 

The point I hope to drive home is that mismanagement of I-9s start with the lack of understanding, urgency, and accountability from leadership. The following five assumptions are commonly given by business leaders when discussing the urgency of conducting an I-9 audit and establishing an effective process that holds those administering I-9’s accountable:

  • What are the chances we will be investigated?
  • My staff has been trained and my managers are experienced with completing I-9’s.
  • My company uses E-Verify and/or employee’s complete the form electronically.
  • We are growing too fast; once things slow down, we will conduct an audit and get everyone trained.
  • I’m not worried, I have Employment Practice Liability Insurance (EPLI)

Let’s discuss the problem with each of these assumptions.

What’s the chance we will be investigated by ICE?

Leaders that have this mindset commonly come from organizations that are small, may not have a diverse staff, or achieves staff diversity by utilizing a staffing agency. The issue with this thinking is that it doesn’t really matter if you have an authorized workforce or not.  Errors are just as easily made on forms completed by citizens as forms completed by individuals without employment authorization.  The form may not have been completed on time or the employer section may be missing required information. In addition, employers may also be liable for temporary employees placed by a staffing firm.  If you use a staffing firm, how confident are you its I-9 process?

All organizations have a risk for an ICE investigation. ICE continues to increase its staff of Junior Compliance Officers for audit enforcement and expand their industry target focus list. It has more than quadrupled the amount of investigations being conducted over the past few years. 

My staff has been trained and my managers are experienced with completing I-9’s

I applaud all organizations that have provided training to those managers and staff members administering I-9’s! Questions I always ask are:

When was the last training conducted?

Have you trained any newly hired managers or staff members since the last training?

Who conducts the training?

I-9 forms and rules are constantly changing.  Training should be conducted annually by an outside source that specializes in I-9 compliance.  I often find that leaders will invest in training for everyone one time, then rely on those trained staff to teach new hires – if required at all.  A problem occurs when changes are made after initial training, and these changes are not reflected in future staff training. So, if someone develops a bad practice, they continue to teach that practice.  I rarely find an internal process that includes ongoing training and spot audits, as well as a way to hold staff members accountable for administering I-9 compliance correctly. 

My company uses E-Verify and/or employee’s complete the form electronically

Again, I applaud companies who use E-Verify and/or invests in an onboarding electronic I-9 process.  Using E-Verify or having employees complete the I-9 electronically do not prevent the potential for documentation violations.  E-Verify certainly will help minimize the chance for hiring an unauthorized worker.  However, the I-9 form still must be completed and there are some additional requirements with the E-Verify process that may even increase the risk of document violation if not completed correctly.  Likewise, there are still errors that can occur when using an electronic form.  The employer may select the wrong document, not complete the form on time, or forget to upload a copy of the document if that is part of the process. 

We are growing too fast. Once things slow down, we will conduct an audit and get everyone trained

It is certainly a difficult situation when resources are scarce and staff is doing everything they can to keep their heads above water.  In times like this it is even more essential to ensure you have a solid process in place and invest in assistance if needed.  It is difficult, time consuming, and costly to try and fix all the errors later.  Nine out of ten times, a company will not go back to correct the errors made during this transitional time, usually because they still lack the time and resources.  The biggest risk this presents would be if ICE contacts you before the forms have been organized and corrections are made.  Once ICE sends a Notice of Inspection, you cannot make any changes to forms.  Also, you will only have three days to gather the forms requested.  Now you will have expenses for additional resources to help gather the requested forms in time, lost productivity from your staff, and attorney’s fees on top of the potential of penalties for the noncorrected errors. 

I’m not worried, I have Employment Practice Liability Insurance (EPLI)

Chances are you do not have coverage under your EPLI.  Coverage for immigration compliance is not a standard coverage in EPLI policies.  A few insurance policies might include some coverage for defense only, but upon a requested endorsement.  Most carriers do not offer any coverage for immigration related claims.  The best protection you have is to implement a clearly defined process that identifies how rehires, photocopies, E-Verify, and reverification will be administered and tracked, holds administrators of I-9 accountable, conduct frequent training, and conduct periodic self-audits.  Self-audits should include a review of the overall process and reverify tracking measures as well as a review of completed I-9 forms.

In summary, immigration law compliance remains a key concern for HR professionals because the costs for non-compliance can be high.  There are several ways to course correct on process improvement.  Internal efforts can be effective, but for those organizations with bandwidth concerns, third party help might be warranted. Remember!  “The best time to plant a tree is 20 years ago.  The second best time is NOW!”  -Chinese proverb