The Wisdom of a Preventative I-9 Audit

As immigration issues are pushed to the front of minds across the country, it’s a good time to talk about the one piece of immigration law that touches every employer and employee, the Form I-9. Every time a business hires a new employee the I-9 should appear in the stack of paperwork that needs to be completed. It is so commonplace that we often forget there was a time, not that long ago, that the I-9 didn’t even exist.

            In 1986, as an attempt to update the Immigration and Naturalization Act (“INA”), Congress passed the Immigration Reform and Control Act of 1986 (“IRCA”). P.L. 99-603 (Nov. 6, 1986). Among the provisions of the IRCA were the first employer sanctions for hiring an unauthorized alien. Employers needed a way to ensure they were compliant with the new provisions of the INA. The resulting regulations gave birth to Form I-9.

            The newest version of Form I-9 gathers more information than past versions. For example, if the employee states they are an alien authorized to work in the United States the form asks for either an Alien Registration Number, Form I-94 Number or Foreign Passport Number. There is a section to gather information about any preparer or translator if the employee did not personally complete the form. If anything on the form is confusing USCIS has helpfully(?) provided fifteen (15) pages of instructions for the two (2) page form.

            There are, of course, penalties for the employee for any false statement on Form I-9. The employee attests to all statements under penalty of perjury. Consequences for employees often come much later, such as during the adjustment of status or naturalization process. However, it’s not only the employee that faces sanctions. After all, the Form I-9 was intended to help employers comply with immigration law.

Regulations require employers to carefully examine the required documents and record the relevant information on the form. The employer also attests, under penalty of perjury, that they are not hiring an “unauthorized alien.” Liability for the employer doesn’t end there. There are also fines for so called “technical violations” found during an audit if forms are not properly completed. A pattern and practice of violating the INA in employment can lead to criminal prosecution including imprisonment.

            Form I-9 has a cutting edge for the employee and the employer. Homeland Security Investigations (the investigative arm of Immigration and Customs Enforcement) has already surpassed 5,200 I-9 audits this year. Employers can protect themselves (and their employees) by obtaining a preventative Form I-9 audit with an attorney. An audit with no issues provides the employer with peace of mind. An audit uncovering several issues could save thousands of dollars in fines. Don’t let Form I-9 slice open the wallet of your business.