In recent years, the number of I-9 audits has increased drastically.  In 2004, an insignificant three audits were reported, compared to an astounding 3,004 audits reported in 2012. Along with this increase is a substantial rise in fines for I-9 violations from a total of $1 million in 2009 to $13 million in 2012.
As stated by Murthy Law Firm, the ICE and President Obama’s Administration has clearly stated that the purpose of an enhanced focus on audits is to find unauthorized workers and ensure that employers are complying with I-9 regulations. The ICE has made an effort to audit companies across the United States of all sizes and in all industries. In assessing penalties, the government compares the percentage of reviewed I-9 forms to the number that have errors. When more than 50 percent have violations, fines are generally $900 per I-9.
Common errors that employers make include:
1. Failing to re-verify continued employment eligibility of employees who are working under temporary approval.
To avoid this issue, employers should make an effort to note the date that re-verification is required. In addition, they should remind employees 90 days prior to the date that their employment authorization expires that they will need to present a List A or List C document which proves continued authorization.
2. Missing or inaccurate information in Section 1.
Employers are responsible for reviewing the information provided by the employee in Section 1 to assure that all required fields are complete and that the employee has signed and dated the form. This is also the opportunity for employers to make note of whether or not the employee’s employment authorization will expire.
3. Failing to have someone physically present on their behalf while the new employee holds the I-9 and the employer representative fills out Section 2. This process must be done within three business days of the employee’s first workday.
Complying with this requirement has become challenging as more employees are telecommuting from a long distance. As a solution, a notary public may be used, but the common fear that the notary would be held reliable for I-9 penalties later is discouraging.
Daniel Brown, an attorney with Fragomen in Washington D.C. suggests preparing a memo which states that the employer would be the one as risk, not the notary, in order to increase the likeliness of a notary agreeing to sign on an employer’s behalf. While anyone can technically be a notary, the ideal option would be to visit a local law firm or a bank where there is likely a notary could act on the employers behalf.
In order to avoid these and various other common mistakes, plan to conduct an internal audit of company I-9 records to catch mistakes before the ICE. While I-9 audits used to be conducted at random, they are now often the result of former employees complaining directly to the ICE. In order to assure compliance, consider contacting a qualified outside provider who has the ability to create a program to further prevent I-9 violations.
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