By Katia Desrouleaux Bowman
Partner, Taylor Porter
In January 2018, U.S. Immigration and Customs Enforcement (ICE) announced its commitment to increase worksite inspections and audits of Forms I-9; and it unabashedly lived up to that promise. The number of I-9 audit notices served upon businesses across the United States from January to July 2018 increased by approximately 300% when compared to the entire 2017 fiscal year. In fiscal year 2017, businesses found to have violated the law were ordered to pay $97.6 million in criminal forfeitures, fines and restitution; and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case. These numbers are alarming and compel immediate preventive action by all employers desiring to maintain compliance and minimize potential reputational damage and financial exposure resulting from an I-9 audit. So what is a Form I-9?
The Employment Eligibility Verification Form or, Form I-9 is the tool employers are required to use to verify the identity and work authorization of every employee (with some rare exceptions), regardless of citizenship. The law that requires such verification is the Immigration Reform and Control Act of 1986 (IRCA), whose purpose is to thwart illegal immigration to the United States and the employment of unauthorized workers by U.S. employers. As a general rule, employers must timely complete and retain the Form I-9 for each employee, including U.S. citizens, hired on or after November 6, 1986.
This article covers only the highlights of the employment eligibility verification process. For this reason, employers are advised to consult an attorney and the U.S. Citizenship and Immigration Services’ (USCIS) employer handbook to ensure compliance with the applicable guidelines. While the Form may appear to be simple, the immigration bar agrees that Form I-9 is one of the most complex three-page documents there is, as evidenced by the related 15-page instructions and 120-page employer handbook available through USCIS. Employers should heed the intricacies of the I-9 process and implement necessary measures to ensure compliance.
These are the basics of the process:
In sum, ICE befittingly characterizes its heightened worksite enforcement strategy as a “game changer” – one that will forcefully procure a culture of compliance with the law. Devising a business plan through which to ensure preparedness for I-9 audits should be a priority for all U.S. employers. More than ever, incurring the cost of implementing reinvigorated compliance with the law (through trainings, self-audits, I-9 policies) makes good business sense, when weighed against the severity of the penalties to which employers are exposed for I-9 violations. Business owners should act now to avoid unnecessary trouble with the federal government in the future.
About Katia Bowman: Katia Bowman is a Taylor Porter partner who practices primarily civil and appellate litigation. She has defended the interests of public and private clients in personal injury, insurance defense, contract disputes, public utilities, unfair trade practice, civil rights, education, retaliation, defamation, wrongful termination, discrimination, and general tort matters. In her employment-based immigration law practice, Katia advises U.S. employers regarding compliance with the employment eligibility verification process (Form I-9 process). She also advises employers of foreign workers on the employment-based visa petition process (EB visa categories). Katia assists not only U.S. employers, but also foreign workers and students desiring to enter the U.S. workforce legally, in connection with the nonimmigrant worker visa process (including H visas). A native of Haiti, Katia herself came to the United States on a student visa (F-1). Her transition of status from F-1 to legal permanent resident and, ultimately, naturalized citizen uniquely qualifies her to help U.S. companies and foreign workers and students navigate the complex and often lengthy immigration process. Driven by her own experience and passion to facilitate and empower the employment of foreign labor in the United States within the guidelines provided by law, Katia proudly devotes her career to assisting American companies and foreign workers with their immigration needs. Katia is a member of the American Immigration Lawyers Association (AILA). Katia serves as the chair of the Taylor Porter Diversity Committee.
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