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Employment Records Subject to Immigration Law Audits
The information below has been prepared by NAHB to help members of the association understand their rights and responsibilities as employers under the nation’s immigration enforcement policies.
Last month, the Department of Homeland Security announced a shift in its strategies to enforce compliance with its immigration requirements on the work site. (For a previous NBN story on this announcement, click here.)
At about the same time, some residential construction companies reported receiving a formal, three-day "Notice of Inspection" document for an I-9 audit, demanding the usual review of company employment records, but also requiring a review of their subcontractors' employment records.
The following questions and answers explain what employers need to know about Form I-9 and what is involved in the event of an audit:
Q. What is a Form I-9?
A. Federal law places an affirmative duty on employers to verify the identity and work authorization of all persons who are hired. This is accomplished by the mandatory completion of Employment Eligibility Verification Form I-9. Employers are required to keep a completed Form I-9 on file for each of their current employees who were hired after Nov. 7, 1986.
Q. When must the I-9 be completed?
A. Section 1 of Form I-9 (information supplied by the employee) must be completed and signed by the employee at the time of being hired.
Section 2 of Form I-9 (the employer's review and document verification) must be completed and signed by the employer (or an authorized representative) within three business days of the hiring.
Q. How long must Form I-9s be retained?
A. Employers are required to retain each Form I-9 for one year after the employee is terminated, or for at least three years from the date of the hire, whichever is later.
Q. What is an I-9 audit?
A. The Department of Homeland Security's Immigration and Customs Enforcement Agency (ICE), formerly the INS, has the authority, without needing a subpoena, to inspect any employer's Form I-9s to verify compliance and to check their accuracy. This inspection is called an I-9 audit.
Q. Can ICE conduct surprise I-9 audits?
A. No. An investigator can show up unannounced at a work site, but cannot demand an immediate production of I-9 records. Under the law, an employer is entitled to receive a three day notice prior to the I-9 audit. In the past, it was possible to negotiate with ICE for longer periods before an I-9 audit took place, as much as 10-12 business days.
Q. Are builder-employers responsible for their subcontractor employees' I-9 compliance?
A. No. Under the law, builder-employers are not required to complete Form I-9s for the employees of their subcontractors, or to monitor their subcontractors' Form I-9 compliance. However, builders should be aware that they are unlawfully circumventing the immigration laws if that know that any of their work-site subcontractors are employing unauthorized aliens.
Q. Do builders have to produce their subcontractors' employment records or a list of their subcontractors?
A. A builder is not expected to have possession of a subcontractor's employment records at an I-9 audit and is not responsible for securing these records from subcontractors or assembling subcontractors at any location. However, builder-employers are required to cooperate with ICE investigations. Other documents of a builder that are relevant to any investigation can be subpoenaed, including records that a builder possesses pertaining to its subcontractors.
Q. Can a builder-employer have an attorney present during the I-9 audit?
A. Employers who are the subject of an I-9 audit have the right to be represented by counsel. Given the new federal "compliance attitude," and its obvious attempt to make builders-employers responsible for subcontractor hiring practices, it is recommended that an attorney be brought in immediately when notice of an I-9 audit is received. Any investigative demands, including demands for subcontractor information, should then be referred to the builder-employer's attorney for appropriate action and response.
Q. Can incomplete or inaccurate Form I-9s be corrected?
A. If at any time errors are discovered on a Form I-9, corrections can be made. Corrections to Section 1 (employee information) should be made by the employee, or made in the employee's presence, and then initialed and dated by the employee. Corrections to Section 2 (employer review and document verification) should be made by the employer or an authorized representative. Each correction should be initialed and dated by the person actually making the change. Under no circumstances should a Form I-9 ever be backdated or forged. These are criminal violations.
Q. What penalties can be imposed for violations of the Immigration Act?
A. If any deficiency or illegality is found, ICE will issue a Notice of Intent to Fine (NIF) to the employer. Form I-9 paperwork violations are subject to fines of between $100 and $1,000 per infraction. More serious violations, such as hiring unauthorized aliens, are subject to steeper fines. Arrest and imprisonment are possible for those who are found to have engaged in a regular pattern or practice of willful violations.
Q. Can an NIF be contested?
A. Yes. An employer has 30 days to contest the NIF by requesting a hearing before an administrative law judge.
Q. Can anything be done to reduce the penalties for unintentional paperwork violations?
A. Yes. Mitigating factors are considered, including the size of the employer, the employer's good faith, a good compliance history, the seriousness of the violation at hand and whether the employee listed on an incomplete or inaccurate I-9 is actually authorized to work. The presence of mitigating factors can result in a reduction of penalties.
Q. What proactive measures should be taken to avoid an unintentional violation?
A. It is highly recommended that builder-employers conduct regular internal audits of their company's employment records to re-verify the legitimacy and appropriateness of the documents on file, to confirm that all Form I-9s are accurate and complete, and to assure that any temporary work authorizations have not expired.
Q. Where can blank Form I-9s be obtained?
A. Form I-9s can be downloaded from the following Web site: www.uscis.gov/graphics/formsfee/forms/files/i-9.pdf
Q. Where can instructions for completing Form I-9s be obtained?
A. Detailed instructions can be found in the U.S. Justice Department publication M-274 "Handbook for Employers — Instructions for Completing Form I-9." This can be downloaded from:
www.osha.gov/pls/epub/wageindex.download?p_file=F6844/I9_Handbook.pdf
Supplemented on Oct. 7, 2005, by the U.S. Department of Homeland Security, Employer Information Bulletin 102, "The Form I-9 Process in a Nutshell," can be downloaded at: www.uscis.gov/graphics/services/employerinfo/EIB102.pdf
For more information, e-mail David Crump at NAHB, or call him at 800-368-5242 x8491.
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