Many employers worry about Form I-9 compliance, and rightfully so. According to the United States Citizenship and Immigration Services’ Outreach Branch, 76% of I-9 forms contain at least one error.
Now, as virtual verifications come to a close and ICE I-9 audits resume, those forms—and the onboarding processes built around them—are likely to receive greater scrutiny. The situation gets even trickier for employers with union workers, thanks to a recent federal ruling. If ensuring I-9 compliance is on your priority list (and it should be), here’s some key factors to keep in mind.
The Perfect Storm for ICE I-9 Audits?
The virtual verification allowance—launched by the Department of Homeland Security (DHS) last March in response to COVID-19—is set to expire on August 31.
This allowance permits employers with remote workers to defer the physical inspections Form I-9 completion entails, examining verification documents remotely.
The caveat: once a business’s normal operations resume—or when the program ends, whichever comes first—employers have just three days to meet in-person with workers to examine the physical documents. Assuming DHS doesn’t issue another extension, employers that haven’t yet conducted these in-person document checks may soon find themselves with a large, highly time-sensitive project.
Obviously, if you manage essential workers who’ve operated onsite throughout the pandemic, or you’re already met these requirements, this will not affect you.
But there’s another important factor at play—one that affects all employers.
Businesses aren’t the only ones kicking back into gear. U.S. Immigration and Customs Enforcement (ICE) is, too. It’s expected that ICE inspectors will soon be resuming I-9 audits—and given the Biden’s emphasis on workplace enforcement, inspections will be rigorous.
If you suspect your Form I-9s are in less-than-perfect shape, now is the time to address them. Perform a self- audit. Fix the errors; fill in the gaps in your files. Don’t wait until an ICE Notice of Inspection lands in your mailbox to set things right.
Bargain with Unions? There’s More Steps Involved
It’s even more complex if you employ union workers. Often, in the wake of self-audits, employers end up requesting new I-9 forms from workers. And while most employers typically wouldn’t think of running this by the unions they deal with, according to a recent federal finding, they must.
In fall, 2020, a panel of the National Labor Relations Board (NLRB) upheld an Administrative Law Judge’s (ALJ) ruling that Frontier Communications Corp. violated the National Labor Relations Act (NLRA) when it refused to bargain with unions over the completion of new I-9s.
The backstory: following an internal audit, Frontier had notified workers that they were required to complete new forms. The union complained that it didn’t receive prior notice, and demanded to bargain the terms. Frontier refused, arguing that it wasn’t obligated to because it was complying with federal immigration law. In turn, the union filed an unfair labor practice charge.
The NLRB found that this was in fact a mandatory subject of bargaining, because the I-9 requirement affected workers’ “terms and conditions of employment.” The finding asserted that the employer had leeway over how much time workers would be given to complete their forms and present their documents—among other terms their unions could bargain.
The moral: if you employ union workers and want them to complete new I-9s, work out the terms with their union(s) first.
Is Your I-9 Compliance Risk Increasing?
In 2019, prior to COVID-19, ICE conducted 6,456 I-9 inspections, resulting in $14,300,000 in fines and 2,675 arrests. Some immigration attorneys predict that under Biden, the number of ICE audits will range between 6,500 and 10,000 per year.
However, it should be noted that under the Obama-Biden administration, ICE I-9 audits nearly doubled between 2009-2013.
Fines for I-9 noncompliance can be steep. In 2019, the average penalty for a single, noncompliant Form I-9 was $1,862. Penalties for technical violations can range from hundreds to thousands of dollars per incident, while those for knowingly employing unauthorized workers can total more than $20,000 per incident.
While it’s hard to know exactly how all this will play out, one thing is clear: now is the time to ensure that both your Forms I-9 are your onboarding process are correct, complete, and compliant. And, of course, if you deal with unions, that they are permitted to bargain relevant parts of your correction process.
Your HCM software should be a valuable tool in ensuring I-9 compliance. At EPAY Systems, our onboarding solution is design to do just that, using a system of automated safeguards and reminders. In addition, with our Compliance Essentials solution, employers can outsource their I-9 audits—and remediation efforts—to our HR consultants, so they can focus on running their businesses. To see how we support our customers, in terms of compliance and everything else, take a two-minute tour.