Every Employer Should Conduct Regular I-9 Internal Audits

Why should an emlpoyer conduct regular I-9 internal audits?
Employers who fail to fully comply with IRCA employment eligibility verification (EEV) and Form I-9 compliance face significant legal, financial and public relations risks. Non-compliance, whether intentional or simply caused by oversight, has severe consequences imposed by the Department of Homeland Security (DHS) and its enforcement agency Immigration and Custom Enforcement (ICE). But DHS enforcement is only the tip of the liability iceberg.

An employer's executives, managers and supervisors can face individual criminal liability for certain of the company's I-9 and EEV violations. These same employer personnel incur similar liability for certain of the company's independent contractor's or subcontractor's I-9 violations. Criminal liability means risk of imprisonment.

ICE New Enforcement Strategy Targets Employers' I-9s for Audits and Ciminal Enforcement

"Just a small fine or a slap on the wrist is not a deterrent...we see more robust criminal cases...the prospect of 10 years in prison carries much sharper teeth than just a small fine....We want to send the message that your cost of business just went up because you risk your livelihood, your corporate reputation and your personal freedom."

"....individuals who have profited from hiring illegal aliens....we're going after their houses, their Mercedes and any money that they have, as well."

-Julie Myers, Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement (Previous Director of ICE)

"ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law...a nationwide effort.. targeting people who employ....There are millions of employers in the United States."

-John Morton, Immigration, New Department of Homeland Security Assistant Secretary for ICE

A short list of some of the employer's risks relating to hiring unauthorized workers as well as simply for committing paperwork violations even if all workers are authorized to work.

• More severe individual criminal liability is incurred for "harboring" illegal aliens, conspiracy to harbor and aiding and abetting harboring. The employer and its executives, manager, supervisors and key personnel are also subject to criminal prosecution for "money laundering."
• Perhaps even more devastating to the employer are competitor RICO lawsuits for I-9 and EEV violations, which include treble damage awards and attorney's fees. A RICO lawsuit probably will become inevitable in the context of some ICE prosecutions of employer settlements with ICE.
• Any ICE investigation or prosecution and any competitor lawsuit involves tremendous legal expenses.
• And, any company that has been involved with defending even relatively minor state or federal agency investigations, let alone prosecutions, well knows the attorny's fees costs pale compared to the substantial executive, manager and supervisor lost time and focus in managing the company's business.
• Also, an employer who is the subject of an ICE investigation, worksite raid or prosecution or competitor RICO lawsuit risks a public relations nightmare.
• Did you know that the Sarbanes-Oxley Act of 2002 ("SOX"), though generally thought to apply only to large, publicly traded companies, impacts private companies and non-profit organizations in significant ways?  SOX has provisions that apply to all companies, including whistle blower protection and records retention.

Unfortunately, most employers are unaware that they have a problem with Form I-9 employment eligibility verification (EEV) requirements until they are audited by governmental authorities. By that time, it is generally too late to undo the damage.

Basic internal audit considerations include reviewing a measningful sample, or all, of the employer's I-9 Forms. This review should key on some particular problems that often arise with regard to proper completion of the I-9 forms.

A sample internal audit checklist should at least include the following:

Employee Information
	Employee name stated incorrectly
	Date of birth missing or incorrectly stated
	Social Security number missing or incorrectly stated
	Address missing or incorrectly stated

Citizenship/Immigration Status
	Status is not indicated or is incorrectly stated
	If employee is a permanent resident, the alien registration number is missing or incorrectly  stated
	If employee is not a permanent resident but has authorization to work in the United
	If employee is not a permanent resident but has authorization to work in the United States, the alien number or admission number is missing or incorrectly stated
	Expiration date of employment authorization is missing or incorrectly stated

Employee's Attestation
	Employee's signature missing
	Date of employee's execution of form missing or incorrectly stated
	I-9 not signed on date or hire (first day of employment)

Preparer/Translator Certification
	Signature of preparer/translator missing
	Name of preparer/translator missing or incorrectly stated
	Address of preparer/translator missing or incorrectly stated

Preparer/Translator Certification
	Signature of preparer/translator missing
	Name of preparer/translator missing or incorrectly stated
	Address of preparer/translator missing or incorrectly stated

Preparer/Translator Certification
	Signature of preparer/translator missing
	Name of preparer/translator missing or incorrectly stated
	Address of preparer/translator missing or incorrectly stated

Form I-9, Section 2. Employer Review and Verification List A
	Inappropriate document listed
	List A document identification missing
	List A document identification incorrectly stated
	List A document issuing authority missing or incorrectly stated
	List A document expiration date, if applicable, missing or incorrectly stated
	Receipt showing application for document accepted, but original document not presented within 90 days (within 21 days if the receipt was accepted before November 21, 1991).

List B
	Inappropriate document listed
	List B document identification missing
	List B document identification incorrectly stated
	List B document issuing authority missing or incorrectly stated
	List B document expiration date, if applicable, missing or incorrectly stated
	Receipt showing application for document accepted, but original document not presented within 90 days (within 21 days if the receipt was accepted before November 21, 1991).

List C
	Inappropriate document listed
	List C document identification missing
	List C document identification incorrectly stated
	List C document issuing authority missing or incorrectly stated
	List C document expiration date, if applicable, missing or incorrectly stated
	Receipt showing application for document accepted, but original document not presented within 90 days (within 21 days if the receipt was accepted before November 21, 1991).

Employer's Certification
	Date of hire missing or incorrectly stated
	Signature of company representative missing
	Signature of company representative incorrect (i.e., employee's signature, wrong placement)
	Name of company representative missing or incorrectly stated
	Title of company representative missing or incorrectly stated
	Name of company missing or incorrectly stated
	Address of company missing or incorrectly stated
	Date of company certification missing or incorrectly stated
	Company certification not signed within three days of hire (first day of employment).

Form I-9, Section 3. Updating and Reverification
	If employee listed an expiration date in Section 1, employment eligibility not reverified on or before expiration date
	If employee listed an expiration date in Section 1, employment eligibility never reverified
	Date of rehire, if applicable, missing or incorrectly stated
	Inappropriate employment eligibility document listed (i.e., not a document from List A or List C)
	Document title or identification number missing or incorrectly stated
	Document expiration date, if applicable, missing or incorrectly stated
	Signature of company representative missing
	Signature of company representative incorrect (i.e., employee's signature, wrong placement)
	Date of company certification missing or incorrectly stated

Goulder Immigration Law Firm helps employers with completing I-9s, training company staff with properly completing I-9s, reviewing I-9 practices, internal I-9 audits and compliance practice reviews, and writing company policies and manuals for instituing uniform I-9 practices.

We help employers avoid I-9 liability, civil fines, criminal arrests, prosecution and convictions, asset forfeiture, and potential treble damages from competitors.