Employer Beware —
It's Time to Audit Your I-9 Records

By Ronald G. Guerra

With increasing frequency the media is reporting on the indictment, arrest, and conviction of employers for "harboring illegal aliens" or for "knowingly accepting fraudulent documents" from persons not eligible to work in the United States. The U.S. Immigration and Customs Enforcement ("ICE"), the largest investigative arm of the U.S. Department of Homeland Security ("DHS"), has significantly enhanced its worksite enforcement efforts during the past two years. This has resulted in a dramatic increase in the number of investigations, indictments, and convictions of employers under the Immigration and Nationality Act.

Consider the following numbers:

2004 — 460 investigations, 79 indictments, and 87 convictions.
2005 — 502 investigations, 186 indictments, and 160 convictions.
2006 — 1,097 investigations, 184 indictments, and 177 convictions (through August 2006).

Why the increased enforcement? Matthew C. Allen, of the ICE, testified on July 25, 2006, before a Congressional subcommittee that:

"Criminally charging employers who hire undocumented aliens will create the kind of deterrence that previous enforcement efforts did not generate. We are also identifying and seizing the assets that employers derive from knowingly employing illegal workers, in order to remove the financial incentive to hire unauthorized workers and to pay them substandard wages."

So the message is clear: employer beware! The days of looking the other way or having a "don't ask, don't tell policy" are gone. Today, an employer must be vigilant in its review of documents presented by employees to establish both their identity and eligibility to work in the United States. To reduce the possibility of criminal or civil liability for hiring unauthorized workers, an employer should:

1. Carefully review its procedures for completing the employment eligibility verification form (I-9) to ensure that:
   
   1. The employee completely fills out Section 1 of the form, no later than the first day of employment, and signs and dates the form;
   2. The employer completes Section 2 of the form by reviewing only original or certified copies submitted by the employee to establish identity and eligibility for employment no later than the third day of employment; and,
   3. The person reviewing the submitted documents is also the person signing the Section 2 certification.
   
   
2. Periodically audit all I-9 forms to ensure compliance with the law, generally once a year.
   
   
3. Correct any I-9 forms found to contain errors during the annual audit. Any "corrected" I-9 forms should include the notation of "audit" at the top of the form. There is no magic way to correct the forms, but you should observe the following:
   
   1. Section 1 errors should be corrected only by the employee, but if the employer has copies of the documents containing a missing Social Security number (SSN) or a missing alien registration, an employer can record these numbers.
   2. Section 2 errors are correctable by the employer, but an employer may not insert a missing date of completion.
   3. Section 3 errors are correctable by the employer. If missing information is not available, the employer must obtain the necessary information from the employee.
   4. If the employer discovers a missing I-9, a new I-9 must be completed. The employer should follow the same procedures as for a new hire except that the Section 2 date of preparation should be the actual date of the preparation of the I-9, with the term "audit" written at the top of the form.
   
   
4. Take prompt action if a "no-match" letter is received from the Social Security Administration (SSA). Do not assume that the employee does not have work authorization. Do not immediately terminate the employee — do give the employee a reasonable time to correct no-match problems by giving them notice and advising them to contact the local SSA office. If the employee returns with a new card and SSN, the employer has two choices:
   
   1. The passive approach is to record the new SSN and respond to the SSA as described in the no-match notice;
   2. The proactive approach is to contact the local SSA office to verify the SSN presented. If it is a match, follow instructions to notify the SSA of the new SSN. If the new SSN does not match, the employee should be terminated.

Remember, an employer is obligated to make I-9 forms available for inspection when requested by an authorized officer of the DHS or the Department of Labor ("DOL") with at least three days' advance notice. No subpoena or warrant is necessary. The inspection and review must take place at the employer's location where the I-9 forms are maintained.

Reducing potential liability for I-9 errors is easy. It just takes time and a commitment of senior management.

A final word. Immigration reform is a political hot potato today. Attempts are being made at the federal, state, and local levels to stop illegal aliens from working in the United States. An employer needs to be vigilant and knowledgeable about its duties in the preparation and maintenance of I-9 records. Ask your industry association to monitor legislative activity and to notify you of any changes in your duties.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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