If ICE comes, is your business ready?

Completing Citizenship and Immigration Services Form I-9 is one of the most crucial steps in the hiring process.

It ensures employers are only employing people who are legally allowed to work in the United States.

This important H.R. onboarding document, used to record employment eligibility verification, was slated to undergo significant structural changes by the time the current form expired on Oct. 31, although the Department of Homeland Security’s Immigration and Customs Enforcement extended the deadline to July 31, 2023.

Why should an employer care about an accurate I-9?

Immigration agents may come to your workplace for a Form I-9 audit, a raid or to detain specific people.

This continues to be a busy year for ICE. No doubt you heard on the news about one of Homeland Security Investigations’ workplace warrants over the past year.

Less newsworthy, the I-9 audits spiked as well, with no signs of slowing down. I-9 audits increased nearly five times over the past four years, to nearly 6000 audits.

It is easy to think that of all the employers in the United States that “only” 6,000 I-9 audits took place. The odds are low that an employer would be audited.

However, if a business is audited, there is nearly a 75 percent chance that it, in fact, will have Form I-9 violations, many of which are avoidable and/or are technical violations.

The potential penalties, for what seems like a simple form, can be staggering. The largest fine that has been levied against an employer — who knowingly accepted falsified documents from illegal immigrants — is $95 million.

The average penalty for a single non-compliant I-9 is $1,862.

Potential penalties

If your business is audited, here is what you are looking at for possible penalties depending on the severity of the violations:

Knowingly hire and continue to employ violations of $573-$4,586  per violation for first time violators. That can be up to $22,972 for repeat offenders.

Substantive and uncorrected technical violations, or failure to produce an I-9, range from $230 to $2,292 per violation. For example, if you have 100 I-9s, and 75 of those are in error, you are looking at fines from $17,250 to $171,900.

Fines may be enhanced up to 25 percent based on business size, good faith, seriousness, unauthorized aliens and history. This puts the above example at $21,562 to $214,875.

How to avoid potential penalties

Here are a few steps now can save a lot of headaches and fines:

1. Conduct an internal audit now. Work with your attorney or HR to do so, as you actually can create technical violations by improperly correcting I-9s or reverifying employees.

While doing so, ensure proper document retention for each terminated employee. Check to make sure the most recent form is used.

2. Use E-Verify to confirm employee eligibility or consider using compliance tracker software that submits eligible I-9 records automatically to E-Verify.

Make sure any software integrates with your applicant tracking system and make sure the form is completed at the time of hiring.

3. If you do get a Notice of Inspection, other audit documentation or a raid, contact a lawyer or HR right away.

4. Make sure your business has a designated person for any ICE audit or raid.

5. Train managers — anyone who is going to fill it out on behalf of the employer and sign — on the I-9’s proper completion.

With the proper resources and tools in place, large fines and penalties and disrupted business operations can be avoided.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.