5 steps to avoid an immigration audit

By Ed Morrow

Intl. Assoc. of Registered Financial Consultants


Immigration enforcement is up. Fines and arrests for Form I-9 violations have increased as investigations grew from 250 audits in 2007 to more than 3,000 in 2012. Where does this trend take you? Beware of the Immigration and Customs Enforcement (ICE) — a part of Homeland Security (you know, those friendly folks at the airports) which is making major efforts to identify violations and impose fines.

Are you or your clients I-9 Violators?

Form I-9 is a federal document that establishes an employee’s identity and demonstrates that he or she is authorized to work in the United States. As a small business owner, you must file a completed Form I-9 for every employee who works for you, including your own family members.

Failure to ensure proper completion and retention of I-9 Forms may subject business owners to civil penalties of up to $1,100 per form and possibly criminal penalties. Plus, there are legal expenses, since the fines can be heavy — and rather discriminatory. For example, in September 2010, Abercrombie & Fitch was fined $1 million because its digital Form I-9 software had a glitch, which meant some fields on the Form I-9 were left blank. ICE still fined the company even though all Abercrombie & Fitch employees were authorized to work in the United States and each had filled out a Form l-9.

Getting your paperwork in order and performing an internal Form I-9 audit can help you and your clients comply with federal immigration laws. Take the following five steps to protect your business now, before an ICE inspector shows up at your door.

1. Use the right I-9 Form.

Form I-9 published on March 8, 2013 should be used for any employee who began working for you on or after May 7, 2013. A copy of the revised form can be found here. If you failed to complete the I-9 Forms for your employees, or cannot locate them, then you must use the new form. You do not need to use this revised form for employees hired before May 7, 2013.

2. Make sure I-9 Forms are completed correctly.

Ensure that employees complete Section 1 of Form I-9 on their first day of employment. Request only the documents that are listed on Form I-9 to prove identity and work authorization, such as passports, driver’s licenses and Social Security cards. Accept only original documents — no photocopies — to confirm employees are legally allowed to work in the United States. You are told that you should not require additional documents from foreign employees, but that instruction does not match the seven pages of instructions attached to the Form I-9.

3. Keep I-9 Forms separate from other HR files.

Keeping these files separate will help when you are subject to an ICE investigation. Place one copy in each employee’s master HR file and another in a file of all your current employees. In addition, you should keep a separate file for terminated employees.

4. Conduct an in-house audit of I-9 Forms.

Begin by making sure you have a Form I-9 on file for each of your employees. If you do not have a form on file for someone, have that person complete one. In addition, review all I-9 Forms for potential mistakes. If you find mistakes, cross out the incorrect information and add the correct information, your initials and the current date.

5. Contact a lawyer immediately if you receive a notice.

ICE provides only 72 hours notice for you to assemble the requested documentation, so act quickly.

Who is exempt from ICE? Only a government agency. Just because you may have hired only U.S. citizens, you are not exempt from requiring and retaining I-9 Forms. Just like Abercrombie & Fitch, you may be assessed a substantial penalty.

You have clients, customers, vendors or personal friends who have employees. Make sure to share this information with them.