Verify, Re-Verify, But Don’t Over-Verify: I-9 Compliance During an Era of Increased Enforcement
HSI Increases I-9 Audits to Target Unauthorized Employment
In October 2017, U.S. Immigration and Customs Enforcement (“ICE”), a division of the Department of Homeland Security, pledged to increase workplace enforcement by a factor of four to five. The acting ICE director characterized this as a “clear message to employers who scheme to hire and retain a workforce of illegal immigrants.” As promised, there has since been a surge in workplace enforcement actions by ICE, according to statistics published by Homeland Security Investigations (“HSI”), the division of ICE tasked with using civil investigations and criminal prosecutions to deter companies from hiring unauthorized workers. HSI’s worksite enforcement actions grew exponentially from 2017 to 2018, with I-9 audits increasing 340%, criminal arrests increasing 460%, and administrative arrests increasing 787%.
Contrary to common perception, the broad reach of immigration law and related enforcement actions is not limited to employers that hire foreign workers. One of the key enforcement devices used by HSI is the I-9 audit, during which investigators review an employer’s I-9 records to determine whether the employer has lawfully verified the identity and employment eligibility of all of its employees pursuant to the requirements of the Immigration Reform and Control Act of 1986 (“IRCA”). 8 U.S.C. 1324a. Even though the stated purpose of HSI’s I-9 audits is to deter companies from hiring unauthorized workers, an employer may be found in violation of IRCA for failing to comply with the numerous technical requirements for completing and maintaining I-9 forms, even if all of its workers are in fact authorized for U.S. employment.
IER Investigations Target Discrimination in the I-9 Process
While HSI audits focus on I-9 errors primarily related to insufficient verification of employment authorization, the Department of Justice’s Immigrant and Employee Rights Section (“IER”) enforces discrimination violations, including those that stem from excessive verification during I-9 completion. IER is a lesser-known federal enforcement agency that enforces the anti-discrimination provisions of IRCA, which prohibits discriminatory practices based on citizenship status and national origin in hiring, firing, recruitment, or referral for a fee. 8 U.S.C 1324b. IRCA also prohibits unfair documentary practices, known as “document abuse,” during the I-9 employment eligibility verification process.
IER investigations can be quite onerous on the employer. IER has broad discovery powers, including authority to serve interrogatories, requests for production of documents and requests for admission. If an IER investigation finds violations of IRCA’s anti-discrimination provisions, IER may impose significant monetary penalties, as well as reporting and compliance monitoring requirements. Given HSI’s increased workplace enforcement and sanctions against employers for I-9 violations, a similar uptick may emerge in IER enforcement actions.
The Deceptively Simple I-9 Form
Critical to employer compliance with the employment eligibility verification requirements of IRCA is the requirement to properly complete I-9 forms for employees and retain the I-9 forms for three years after the date of hire, or one year after the date employment is terminated, whichever is later. At the time of hire, the employer must inspect the employee’s original document(s) from the list of “Acceptable Documents” on page 3 of the I-9 form to establish the employee’s identity and employment authorization.
The employer must also “re-verify” certain employment authorization documents with expiration dates to ensure that their employees remain authorized for employment. For example, a Form I-766 Employment Authorization Document (“EAD”) is a valid “List A” document  evidenced by the expiration date that appears on the EAD. On or before the expiration date, the employee must present acceptable documents establishing the extension of employment authorization, or employment must be terminated thereafter. It is the employer’s responsibility to keep track of expiration dates for temporary work authorization, and to re-verify by inspecting the employee’s new acceptable documents and properly completing Section 3 of the Form I-9.
Importantly, the I-9 form must accurately document the verification and re-verification processes, including the actual dates on which they were completed. Employers may be subject to fines and even criminal sanctions for I-9 violations, depending on the severity and willfulness of the error.
HSI Enforcement: Violations Related to Insufficient Verification
As discussed above, HSI uses I-9 audits as a critical tool for determining whether employers are properly verifying the employment authorization of their employees. Specifically, HSI has the authority to order an employer to produce all of its I-9 files and payroll records for inspection. These inspections focus on violations ranging from procedural/paperwork errors (e.g.., the employer inadvertently fails to include the expiration date of an employee’s employment authorization document), to more serious violations such as knowingly hiring an unauthorized worker, which are frequently evidenced by missing I-9s or clearly false documents accepted by the employer.
Employers who are found to have engaged in procedural or paperwork violations may receive a civil monetary fine anywhere from $224 to $2,236 per violation. See 8 C.F.R. 274a.10(b)(2). Employers who knowingly hire or continue to employ unauthorized workers face larger fines ranging from $559 to $22,363 per violation, criminal prosecution and up to six months of imprisonment if found guilty, and possible debarment from participating in future federal contracts and receiving certain government benefits. See 8 C.F.R.274a.10(b). The amount of the fine is based on multiple factors, including the size of the employer’s business, whether the employer acted in good faith to comply with the law, the severity of the violation, whether the violation involved unauthorized workers, and whether the employer has a history of violations.
IER Enforcement: Violations Related to Too Much Verification
In light of the uptick in HSI investigations and the potential penalties and sanctions imposed by HSI, employers may be tempted to require specific or multiple documents during the I-9 process to ensure that their employees are adequately verified. However, requesting “more or different documents” than those required by law is known as “document abuse” and would run afoul of the anti-discrimination provisions of IRCA. Employers must accept any documentation presented by an employee that meets the requirements set forth in the List of Acceptable Documents on page 3 of Form I-9—namely, one document from List A (establishing identity and employment authorization) or one document each from List B (establishing identity) and List C (establishing employment authorization). See supra note 1.
Requesting or even suggesting a specific document type could be seen as “screening” employees based on national origin or citizenship status and should be avoided. A typical example of document abuse discrimination is when an employer requires an employee who claims to be a lawful permanent resident to present a Permanent Resident Card (a/k/a “green card”), even after the employee presents a valid driver’s license (List B) and a Social Security Card without restrictions (List C).
Requests for more or different documents than those required by law are permitted if required to comply with a statute, regulation, or Executive Order, or if made pursuant to a federal, state or local government contract (e.g., a citizens-only hiring policy mandated by law or government contract). Another exception would be complying with the specific documentation requirements of E-Verify (i.e., List B documents must contain a photograph of the employee to establish identity).
IER investigations are typically initiated in three ways: (i) upon the filing of a discrimination charge by a complaining party (the employee); (ii) based on information provided by another government agency, including HSI; or (iii) independently by IER. Unlike HSI, IER has not released statistics showing an increase in enforcement actions. However, over the past few years there have been new regulations extending IER’s authority to investigate, including the 2017 expansion of the time frame in which the IER may initiate an investigation. Additionally, there have been a number of recent immigration-related discrimination lawsuits resulting in large settlements, including the December 2018 assessment of $857,868 in civil penalties against companies that required different groups of workers to provide specific work authorization documents based on their citizenship status. Civil monetary penalties for document abuse typically range from $185 to $1,848 for each individual found to be discriminated against. Other unfair immigration-related employment practices are subject to civil penalties ranging from $461 to $18,477. See 28 C.F.R. 68.52(d)(2); 28 C.F.R. 85.5.
Internal I-9 Audits Are a Best Practice
Employers should periodically conduct internal audits of their I-9 forms to assure compliance with IRCA requirements. Very specific guidance for internal I-9 audits has been issued jointly by ICE and IER, which is available here. This guidance is intended to help employers conduct internal I-9 audits in a manner consistent with both the employer sanctions and anti-discrimination provisions of IRCA.
The purpose of correcting an I-9 form after an audit is not to conceal any errors, but to show that the employer acted in good faith to be compliant and has a procedure in place to prevent such errors in the future. Corrective action may involve simply drawing a line through the incorrect information, entering the correct information, and initialing and dating the correction. When an I-9 is missing altogether or does not contain sufficient or acceptable documents, the employer should complete a new Form I-9 and inspect the employee’s original documents. The employer must not backdate the new I-9 or destroy the prior I-9. Employers should ensure that only the employee makes any necessary corrections to Section 1 of the I-9 form. The ICE/IER joint guidance contains instructions for multiple scenarios, and should be reviewed carefully by employers before undertaking such an audit.
Avoid Discrimination Violations During an Internal I-9 Audit
While it is certainly a sound practice for employers to conduct internal audits to ensure their employees’ I-9s comply with IRCA in the event of a government investigation, employers must not be overly zealous and should avoid discriminatory practices when trying to correct any errors identified in an audit. As a general rule, employers should only request existing employees to present original documents when the original I-9 is not properly completed. Further, employers should avoid making blanket requests for documentation to any one category of workers, and should carefully document any remedial action taken that may have the appearance of discrimination. As noted above, a common way for IER to initiate an investigation is upon receipt of a complaint from an aggrieved employee.
Conclusion: Increased I-9 Enforcement Requires Increased Employer Compliance Efforts
The interplay between IRCA’s employer verification and sanctions provisions and the anti-discrimination protections for workers and job applicants illustrates the careful balance that employers must maintain to avoid violations of either kind. The surge in HSI investigations and penalties against employers signals a new enforcement environment which employers must carefully navigate to ensure compliance with IRCA’s employment eligibility verification provisions while avoiding discrimination violations.
 Page 3 of the I-9 Form contains three separate lists of Acceptable Documents that employers are required to accept from employees for I-9 purposes. The first list, List A, contains acceptable documents for the purpose of establishing identity and also temporary employment authorization to work in the United States.
This blog was written by Hank Suelau and Jennifer Ciarrocchi at Miles & Stockbridge.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.