Immigration Compliance for Employers in the Trump Era

As presidential administrations come and go, Congress continues to attempt (and so far fail) to pass sweeping immigration reform.

Immigrants, both naturalized and here on work visas, make up more than 17% of the American workforce, with an estimated additional 5% of the workforce working illegally. The Trump administration has taken a hardline approach on policies surrounding immigration, as seen in a 76% increase in ICE (Immigration and Customs Enforcement) raids on businesses since January 2017.

Some of the most heavily impacted industries include restaurant and hospitality groups and manufacturing plants. With the administration’s recent Supreme Court win on the travel ban and no clear path to citizenship for individuals in the DACA program, companies must look inward and actively understand how to protect themselves under these new policies and guidelines.

Form I-9 Overview

Let’s start with the basics. In November 1986, under the Immigration Reform and Control Act, the Federal government created Form I-9 as a way combat unauthorized work in the United States.

What is Form I-9?

Form I-9 was created as a tool for employers to document and verify the identity and employment authorization of individuals hired for employment in the United States. No matter the size of your company, all employers must complete a Form I-9 for each employee hired. For employees rehired within three years of their original termination date, only Section 3, Re-verification, needs to be completed by the employer.

The employee must attest to their work authorization in Section 1 on (or before) the first day they begin employment, and a representative from the employer must review employee-provided documents supporting work authorization and proving identity in Section 2 no later than 3 days following the employee’s date of hire.

While seemingly straightforward, Form I-9 is huge source of not only financial risk, but also legal liability. ICE audits can lead to large fines, costly lawsuits, and potential mass loss of employees.

Best Practices to Protect Your Business from ICE Audits

Educate HR Personnel

  • Ensure all staff members who are responsible for completing Form I-9 for newly hired and rehired employees are aware of time sensitive deadlines for completing the form
  • Create procedures surrounding recertification of documents for those employees on work visas that may expire
  • Utilize resources, such as I-9 Central, to review proper documentation for List A, B, and C items

Formalize Policies

  • Create clear policies outlining the company’s desire to hire only eligible employees for work in the U.S.
  • Consider implementing the use of E-Verify, an online based system used to proactively review an individual’s ability to work in the U.S.

Conduct Self-Audits

If your company has not completed a self-audit, now is the time do so. Follow these steps when reviewing your documents:

  1. Review all documents and separate all terminated employees’ Form I-9 (Note: These must be retained for a period of 3 years from date of hire or 1 year from date of termination, whichever is longer)
  2. Review Section 1 for common errors such as date of birth, signature, date of signature and attestation of authorization to work
  3. Review Section 2 for common errors such as under/over documentation, using unapproved documentation, failure to complete the section
  4. Correct any errors with a single strike-through (Note: White-outs and erasures are not acceptable corrections) (ALSO Note: Only Employees can complete edits to Section 1 and only Employers complete edits to Section 2)

This process may vary slightly with the electronic Form I-9, but the basic principles of what to look for remain the same.

Employer’s Rights

Many employers are unaware of their rights in cases when an ICE agent shows up at their place of business. Companies should consult an immigration attorney when dealing with employees on visas or individuals losing status due to the expiration of programs such as DACA. For more guidelines surrounding employer rights, check out this helpful overview from the American Immigration Lawyers Association.

Be Proactive

As the country ponders over the correct legislative fix for immigration, businesses should proactively review their practices and policies to determine their level of liability in complying with State and Federal laws around hiring and work authorization. While it will not always absolve you of any problems, the proactive approach will win you some favor when it comes to formal audits and potential lawsuits.

StratEx HR clients can reach out directly to their HR Account Manager with any questions on this topic.