It can be reasonably said, completely absent of any political partisanship, that the election of President Donald Trump and the happenings of his first 100 days in office represent an unexpected new frontier in American government. His penchant for bold pronouncements, which is echoed by numerous officials in his administration, has at times been difficult to parse for traditional reporters and policy analysts.
"Enforcement of immigration laws is of utmost importance to the new presidential administration."
However, on certain issues, the stance of the president and senior White House officials has been perfectly clear. The enforcement of immigration laws, which of course include work authorization requirements and I-9 compliance guidelines, is one of these. The Trump administration is strongly in favor of stricter rules and more extensive penalties for their violation, as both President Trump and leading staff have expressed on numerous occasions.
As such, it will be immensely important for employers to assess the current state of these issues, and also to keep themselves informed regarding any updates to employment eligibility compliance guidelines.
Audits, E-Verify to be ramped up
Raids by the Department of Homeland Security on homes and businesses, as well as less auspicious internal audits, intended to enforce immigration laws have been occurring at a much higher rate than was seen during the previous presidential administration. In an interview with the Sarasota Herald Tribune, Alcott HR corporate counsel attorney Dawn Davidson Drantch stated that these events could have a significant effect on small companies.
"The Trump administration has been relying on raids by the Immigration and Customs Enforcement division and will most likely require all businesses to use the federal E-Verify service in the near future," Drantch said.
While the ICE raids have received considerably more media attention, administrative audits conducted by the agency - often in conjunction with U.S. Customs and Immigration Services - can be just as problematic to small businesses that aren't fully compliant in their employee verification procedures for any reason. In addition to disrupting your regular business processes, news of such audits can quickly spread around your industry and effectively function as a scarlet letter - whether you've broken any laws, merely failed to complete all I-9 forms or have done nothing at all and were being routinely audited.
Ensuring compliance through your own practices
According to Rebecca Mancini, an attorney with Miller Canfield Paddock and Stone PLC, it is important for employers to determine a strategy for continued compliance with current immigration laws and enforcement. Writing for her firm, Mancini points out that the President Trump’s recent executive order “Buy American and Hire American” calls for new rules and guidance to protect the interests of U.S. workers through prevention of fraud or abuse. This follows heightened compliance and enforcement initiatives issued recently through the coordination of various government agencies. Mancini notes that on April 3, 2017, U.S. Citizenship and Immigration Services initiated a new focus for its site visit program on H-1B dependent workers as well as H-1B employers that place foreign workers at third-party worksites. Simultaneously, the U.S. Department of Justice issued a warning to H-1B employers cautioning against citizenship discrimination and displacement of U.S. workers through hiring of foreign nationals. One day later, the U.S. Department of Labor announced that it will increase investigation and audit efforts with H-1B employers to ensure Labor Condition Application (LCA) and wage compliance.
Conducting internal I-9 and compliance audits regularly will prepare employers for increases in site visits and investigations. Mancini advises that I-9 audits should be carefully conducted by starting with a list of current employees on payroll and ensuring each has an I-9 on record. I-9s should then be thoroughly reviewed, taking care to identify any errors or omissions that require correction. All corrections should be dated and initialed by the auditor. A review of Public Access Files to ensure proper LCA records are maintained for H-1B, H-2B and E-3 workers is also suggested.
Mancini also advises that responsible HR representatives and in house counsel carefully track the placement and employment terms of each foreign worker. LCA and H-1B amendments may be required if foreign workers moved placed off-site or if there are other material changes to their previously approved employment.
According to Keith Covington, an attorney with the firm Brantley Arant Boult Cummings LLP, the best way to circumvent any of the difficulties that an ICE I-9 administrative audit can cause is to do their job for them - in other words, you should conduct your own internal compliance audit. Writing for his firm's Labor and Employment Insights blog, Covington pointed out that the auditor should be someone who understands the federal I-9 regulations but is not necessarily involved in the day-to-day aspects of their verification process.
Much of this work will involve comparing and contrasting: Whoever is tasked with the audit should compile a list of current and past employees who should have I-9s on file for the most recent fiscal year, and identify any discrepancies between this listing and the business's available forms. Any errors need to be struck through, with the correction placed nearby, dated and verified by the auditor's initials. ICE and USCIS officials will note the initial errors but not penalize employers as long as they're corrected. The same basic process applies to missing information - fill it in, initial it and date it.
Covington also advised that employees be made fully aware of any internal audit you choose to conduct. Their guard will likely be up if you let them think the process is federally mandated and this fear can lead to mistakes, but if you ensure them it's an internal investigation, you'll likely receive all the cooperation you need.
Finally, always remember that E-Verify and I-9 forms are not mutually exclusive. Thus, if an I-9 has to be corrected for a particular worker, it doesn't mean you need to duplicate that employee's E-Verify process.
Solutions to ensure compliance and audit Form I-9
I-9 Medic, a solution offered by I-9 Advantage as part of a complete suite of web-based Form I-9 and E-Verify software is a perfect tool for any organization to audit their I-9s and ensure compliance with federal requirements. I-9 Medic converts existing paper based Form I-9s to digital format, precisely checks each document for errors, and enables accurate and truly compliant correction of each failed I-9. I-9 Medic also ensures a consistent process for correction to help eliminate the possibility of discriminatory practices throughout the entire remediation process. To learn more contact I-9 Advantage and schedule a live demonstration or consult with a specialist.