Immigration law seems to be constantly “under construction.” The federal government revokes certain visas, which are then re-instated by the courts. This impacts employers who are required to demonstrate compliance with worker authorization laws under civil and criminal penalties.
In prior years, the U.S. Citizenship and Immigration Services (USCIS) performed audits of employers’ I-9 compliance. Now, Immigration and Customs Enforcement (ICE) is performing those audits and with more frequency.
ICE also expanded what is considered a “substantive violation” of I-9 laws, so what used to be considered a “minor” error that could be corrected as a technical failure is now considered “substantive.” These errors include incorrect or missing dates, late document verification, incomplete Section 2 entries, use of the Spanish language form outside of Puerto Rico, and failure to ensure that the preparer or translator’s complete name, address, signature, and date are provided on the I-9 at the time of completion in Supplement A. Importantly, “substantive violations” carry a mandatory penalty fee that is typically $2,500 per I-9.
ICE has also increased enforcement of remote verification and electronic I-9 compliance as well as failure to reverify before temporary employment authorization expires. One easier way to demonstrate documentation is that employers can rely on letters from immigration attorneys and court orders as a form of verification. That said, the visas and worker authorizations that used to be granted automatic extensions are now facing more scrutiny and are often being revoked. Employers need to keep an eye on any expiration dates, so about 30 to 60 days beforehand, they can remind employees to apply early for extension or re-authorization.
Employers need to also be aware that the Department of Transportation now requires proof of residency to issue a commercial driver’s license.
With laws regarding temporary employment authorization and residency constantly changing, what can employers do to remain compliant?
Employers can contact an attorney to perform an audit or they can employ software vendors to verify employee information and authorizations. With software vendors, if there are any errors in the original documentation or as a result of their audit, then the software vendor absorbs that liability instead of the employer.
Going forward, employers can also train their employees on how to review section 1 and complete section 2 of the I-9 form to make sure nothing is left blank and every signature is dated.
For more information, feel free to contact Lanak & Hanna attorneys.