Many of my articles discuss the gray area where a misconception can lead to legal exposure related to discrimination, harassment, or retaliation. And while those are real areas of concerns that center around a narrative we intrinsically understand (for example, I do not need to explain why jokes using racial epithets are inappropriate), misconceptions also take center stage in the employment onboarding process.
The United States likely is home to over 11 million people without legal authorization to work. This often forces employers to choose between essential employment compliance and economic competitiveness. Employers that seek to remediate this risk are regularly told to conduct I-9 self-audits – but most employers have misconceptions about how to complete these critical compliance checks. Consider these three common misconceptions and how to take action.
Misconception 1: It will take too much work to correct issues
When an employer commits to follow a clear remediation plan, I-9 corrections can be simple. Outlined below is a five-step plan that can be adapted to most situations. Employers should also be prepared to escalate complex situations to legal counsel experienced with immigration compliance and I-9 audits.
- Become familiar with Form I-9 instructions and U.S. Citizenship and Immigration Services regulations, and train staff accordingly.
- Organize and retain completed I-9 forms, separating them by current and former employees. Since ICE typically focuses on current employees, start with them.
- Review each I-9 form for accuracy and consistency with supporting documentation (if available). Avoid unnecessary changes, as one can compound the issue by making the audit trail hard to follow.
- Establish a remediation plan for the I-9 records. Develop a communication plan for employees and a strategy for those lacking proper documentation.
- After remediation, collaborate with legal counsel to upgrade processes, improve policies, and document changes effectively.
Misconception 2: Self-audits and corrections are unnecessary
This is a common misconception. However, the reality is that a self-audit is crucial, as it can easily identify and remedy many high-stakes errors associated with I-9s. For those pretending to be an ostrich and hiding under the sand, here is a list of some concerns related to improper I-9s:
- Government-imposed I-9 financial penalties, often surpassing $1 million, affect companies – even those without foreign employees.
- Stringent enforcement applies to simple errors or electronic I-9 system use.
- Noncompliance leads to discrimination lawsuits and union grievances.
- Violations prompt investigations by the Equal Employment Opportunity Commission and the Department of Justice.
- Poorly timed ICE investigations can result in negative publicity and business interruptions for companies with undocumented workers or communication lapses.
Regular self-audits are proactive measures that can help employers identify and rectify errors before they escalate into serious compliance issues that can have serious unexpected impact.
Misconception 3: Immigration compliance stops with the I-9
The I-9 audit is just the start of immigration compliance. Consider implementing an electronic I-9 system, conducting regular training and audits, and collaborating with E-Verify for any extensive issues. Adherence to visa programs, such as H-1B, is crucial for employers to avoid consequences like fines and visa disqualification. Given the evolving immigration landscape, employers must stay informed about policy changes, requiring regular training for HR professionals and compliance officers to ensure ongoing compliance.
By recognizing that self-audits are not optional and embracing the process for effective remediation, employers can navigate the complexities of Form I-9 compliance with confidence; doing so will mitigate immigration risk.
Stephen Scott is a partner in the Portland office of Fisher Phillips.