On January 20, 2011, John Morton, Director of United States Immigration and Customs Enforcement (“ICE”), announced the establishment of an Employment Compliance Inspection Center (“ECIC”) in Crystal City, Virginia, near ICE Headquarters. The ECIC will be staffed by 15 auditors who will support ICE’s worksite enforcement strategy by helping ICE field offices around the country expedite Form I-9 audits of businesses selected for inspection. Mr. Morton indicated that the 15 additional auditors will focus their efforts on investigations of the largest companies. Small businesses, however, are not immune from Form I-9 audits. Worksite enforcement of businesses large and small will continue to be a top priority for ICE in the coming year, and all employers should be on notice.
Last year marked the largest number of audits ICE has conducted in a single year, and, with increased resources and enforcement efforts, that number is sure to increase. Indeed, during fiscal year 2010, ICE opened 2,746 worksite enforcement investigations and recorded nearly $7 million in fines. Many of the investigations included small employers. According to Morton, the new ECIC has been created to support regional immigration officers that may have, until recently, avoided auditing large companies because of the logistics of conducting the audit. Now, with the creation of the ECIC, ICE will not be limited by the size of the company.
So, what does this mean for employers? Increased worksite enforcement and the focus on Form I-9 audits means that employers should be proactive: recognize and correct Form I-9 problems before ICE comes knocking on the door. First, ensure that all Form I-9s are completed fully and accurately. Even so-called “minor paperwork mistakes,” often referred to as “technical mistakes,” can result in costly penalties for employers. If employers determine that their Form I-9s contain mistakes, employers must make appropriate corrections.
Late last year, ICE provided some guidance about how it will treat deficient I-9s. “Good faith” violations are viewed dimly if corrections are made after ICE sends a “Notice of Inspection”—the first step in an ICE audit. ICE indicated that only technical violations (e.g., wrong birth year or information placed in the incorrect box) should be corrected after a Notice of Inspection. Substantive errors, such as missing or incorrect information regarding an employee’s work authorization or missing signatures, cannot be corrected after receipt of a Notice of Inspection. Accordingly, employers need to proactively perform internal audits on a regular basis and make corrections before receiving a Notice of Inspection from ICE. Otherwise, employers’ ability to make certain corrections will be limited, and they may pay a hefty price.
Employers who find that they need to make corrections to some (or all) of their Form I-9s, should consult with legal counsel to ensure that they make corrections appropriately. While employers who make corrections on their own often have good intentions, making corrections to the Form I-9 incorrectly can result in other penalties. If an employer is faced with an ICE audit, ICE will examine if the employer‘s actions in correcting any defective I-9 are reasonable by reviewing what happened, when it happened, and why it happened through a contemporaneous record. Although there is sparse guidance from ICE on how to make specific, appropriate changes to the Form I-9, certain general procedures should be employed.
First, the employer must distinguish between technical errors and substantive errors. For technical or so-called “minor paperwork errors,” corrections should be conspicuously written in a different color ink on the I-9 with the date and name of the person making the corrections. An explanatory note for the correction, either in the margin or a recording notation if using an electronic I-9 system, is also a good practice. Corrections should never be backdated to make it appear that the form was completed properly and dated at the time of hire. For substantive errors (e.g., missing or incorrect information regarding an employee’s work authorization), corrections should not be made to the original I-9. Instead, the best practice is to complete a new I-9 and attach it to the original form. Second, corrections to Section 1 of the Form I-9—the employee’s section—should be made by the employee, not the employer. ICE has expressed discomfort when employers make changes to Section 1 of the Form I-9 because the potential for fraud exists.