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FORM I-9—Increased federal enforcement requires proactive measures

FORM I-9—Increased federal enforcement requires proactive measures

The US Immigration and Customs Enforcement (ICE) is stepping up enforcement efforts of unauthorized workers by tripling its number of officers and quintupling the number of enforcement actions in 2018. As a result, employers need to be proactive and ensure that they are hiring authorized workers and that their Form I-9 practices are in compliance, says a new XpertHR report. Otherwise, employers may be ICE’s next target.

Under the Immigration Reform and Control Act (IRCA), if an employer knowingly hires or continues to employ an unauthorized worker, it can be exposed to civil and criminal penalties. The IRCA applies to all entities, large and small, corporate and individual, regardless of the number of employees in the employer’s workforce. Limited exceptions to the I-9 rule include individuals hired for domestic employment that is sporadic, irregular, or intermittent; independent contractors authorized to work in the US; B-1 domestic servants; B-1 trainees on short term training programs; employees hired before November 7, 1986 and continuously employed; and individuals who are not working physically in the US.

“While it may seem daunting to stay current with the form’s evolving technical requirements, the failure to do so may expose an employer to audits, fines and/or criminal prosecutions, which could include prison time,” says Melissa A. Silver, Legal Editor, XpertHR.

DACA. One employment eligibility issue facing many employers is related to employees who are beneficiaries under the Deferred Action for Childhood Arrivals (DACA). Keeping up with the legal developments regarding DACA is a challenge and employers need to ensure that they stay up to date on this continually evolving issue when verifying employment eligibility and authorization of new hires.

Avoiding discrimination. Another potential trap for employers is ensuring that they employ an authorized workforce, while avoiding engaging in discrimination during the Form I-9 process. In order to ensure compliance employers should take various actions, including the following:

  • Closely follow the directions mandated on the Form I-9. Do not request any additional information or documents beyond what is mandated on the Form I-9.

  • Allow employees to choose which of the approved documents the employee will use in completing the Form I-9. Do not mandate that any particular document be presented by the employee.

  • Wait until after the prospective employee has accepted the employment offer before verifying the new hire’s eligibility for work or requesting completion of the Form I-9.

  • Train employees involved in the Form I-9 process not to refuse to hire a prospective employee because he or she presented documentation with a future expiration date.

  • Avoid making hiring, retention, or termination decisions on the basis of actual or perceived citizenship status, national origin, or the employee’s native language.

Ensuring compliance. In order to ensure compliance with the IRCA and the Form I-9 requirements, employers should establish uniform policies such as the following:

  • Whether to copy supporting documents;

  • Storage of I-9 forms;

  • Addressing credible reports of suspected unlawful employment and/or fraudulent identity; and

  • Retention and purging.

“With increased scrutiny on employers’ hiring practices, especially those of non-US citizens, employers need to ensure that they verify the employment authorization and identity of new hires,” explains Silver. “Although challenging, having a Form I-9 compliance program and training personnel on properly completing the Form I-9 can help minimize the costly pitfalls of noncompliance.”

About the author, Rhamy

Rhamy grew up watching and working with his mother and grandmother in the seniors insurance market. This familiarity with the struggles faced by people trying to navigate the incredibly complicated and heavily regulated healthcare market led him to start Poplar Financial while working on his degree at the University of Memphis. After completing his MBA and Bachelors in Finance and Economics, Rhamy guided Poplar Financial through the disruptive opportunity that is the Affordable Care Act. Since then Poplar Financial has received numerous awards from major insurance carriers, and has completed its fourth year in a row of doubling in size. Now his team focuses on the processes around human resources, and specializes in providing companies with between 20 and 1000 employees with the payroll, benefits, and HR needs.

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