I see the laws made in Washington D.C
I think of the ones I consider my favorites…
Talking Heads
A long time ago, in a world far, far away, in the same summer the first Star Wars film came out, Talking Heads released a very happy jaunty ditty of a song called “Don’t Worry about the Government”. I’m here to suggest that you might want to start worrying about them again, at least as far as your trove of Forms I-9 is concerned, because there is every indication that Immigration and Customs Enforcement, or “ICE”, like the Empire, will be striking back, as cold as ever they were and they’re going to want to look at your Forms I-9. Are your I-9s in any shape to be looked at by ICE, considering their power and authority to levy fines for errors found, or worse? And, oh, by the way, effective this past March 2024, ICE is now empowered to levy the costliest fines in I-9 history for violations of Form I-9 Compliance regulations. For “Paperwork Violations” alone, things as simple and non-criminal as failing to use the mm/dd/yyyy dating protocol, the discretionary penalties now range from $281 to $2,789 per Form. A couple of hundred thousand dollars in fines and penalties is not generally a budgeted item for most small to medium businesses, and in fact the list is not short of businesses no longer in business because of such enforcement actions. There is some good news on the nitpicky front though as the latest revision of the form dribbles a bit of mercy upon employers: “New hires and employers are no longer required to enter “N/A” in fields that do not apply. Employers were previously subject to fines for failing to ensure “N/A” was entered.” (https://www.foley.com/insights/publications/2023/07/dhs-new-version-form-i-9-remote-e-verify-employers/)
You know all those Forms I-9 that you don’t much think about, filling up a few drawers in the file cabinets, or better, the ones you NEVER think about, filling up space in the cloud courtesy of your HRIS or your Electronic I-9 vendor; or, best, you are, in the parlance, one of the “employers who participate in E-Verify and are in good standing” and so, kinda, the government handles all that for me? It is now time to start thinking about them again, and you might want to throw in a healthy spoonful of actually worrying about them, because here pretty soon it may well be that the ICE-Man cometh, for your Forms I-9, your bank accounts, and even, in some cases, for you, the employer! EVEN if you are numbered with the “employers who participate in E-Verify and are in good standing”. There are no real “safe-harbors” in the coming storm-wave of ICE Form I-9 Examinations and audits.
What is the Form I-9, you ask? In brief, the best explanation of this simple government form that both you and your employee are signing off on under penalty of perjury is summed up in this easy-to-follow flow-chart :
Or, let me explain it another way. We’re all familiar with the delightful IRS Form 1040, introduced before any but the halest of us were born. The form that nearly EVERYONE either uses informed tax software to complete, or hands the whole thing off to the CPA? Well, the Form I-9 is worse, and for Regular-Joe American employer, the consequences of even the most innocent mistake could cost you more ka-ching than your company has in its coffers.
The Federal Form I-9 is a seemingly-simple, 14-times revised in its 38 years, one or two-page (depending on Revision #) Form created and recreated by lawyers; it is currently a 4-page print, which includes the Form, the List of acceptable Documents, and Supplements A & B. The Instructions for the Form is an additional 8-page pdf – and all of this is accompanied by a 138-page pdf instructional document called the “M-274”, a somewhat stupefying tome though relieved by the interspersal of bright color images like dinosaurs in a childrens’ book of Drivers Licenses and various other domestic and international identification documents ( https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274 ). As far as an auditor is concerned, you are expected to master all of this, and ignorance is no excuse.
There was a time, not that long ago, when the Federal Form I-9 and the potential associated federal liabilities resulting from its mishandling was THE front & center issue for HR Professionals; at any SHRM gathering or convention, every third seminar on the schedule had something to do with I-9 compliance, and the horrific monetary consequences of inadvertent omissions on this seemingly simple one or later two-page mandatory Federal form, or even more horrifically, company executive perp-walks resulting from more egregious offenses.
To be fair, unless you were management at one of the Big 4 Poultry corporations, or a general contractor building sunbelt cities, the likelihood of being paraded in shackles on the evening news was pretty low, and I can hardly imagine an actual SHRM member knowingly committing an HR felony! But plenty of SHRM members wrote in a Section 2 List B document without the corresponding List C document info, or did not put in the first day of employment on that little blank line hidden amidst a jungle of verbiage, or putting it in there but not in mm/dd/yyyy format or ANY number of piddly other omissions, errors, typos or misplacements, each one of which at ICE auditor discretion could have cost multiple hundreds of $$$ I kid you not!
And this all came about because, way back in the Reagan Administration, as a compromise solution to make the “amnesty” component more politically palatable, congress passed both The Immigration Reform and Control Act and the buck and in a bit of Pilate-like jiu-jitsu, transferred most of its border-control responsibility over to … you. The Employer. You, if you had ANY employees whatsoever including yourself, or your HR team if you had LOTS of employees had just been transmogrified into The Border Patrol, and the only weapon given to you for the task, the newly created out of nothing Form I-9, if mishandled, could become a self-incriminatory bazooka now pointed right at YOU, The Employer, as rock-solid documentary evidence of your own misdeeds, knowing or unknowing, intentional or accidental, in much the same way that the Feds finally nailed Al Capone for, fundamentally, Paperwork Violations (as they are known in the I-9 Enforcement World) committed in the completion of other and equally abstruse federal forms, in Al’s case our dear friend the Form 1040. And, as if that were not sufficiently awful, a federal enforcement agency, the aptly acronymed ICE (Immigration and Customs Enforcement) were duly empowered to look over your shoulder, breathe down your neck, and send chills up the spine of you, the Employer, and you can’t really tell them, “Gentlemen, the border is down there” when they are at your door, wanting to see your papers – in this case, your Forms I-9. And when they demand your papers, you’d better produce them, pronto.
I detailed in a previous article (https://www.safesthires.com/the-virtual-form-i-9-is-a-land-of-confusion-for-employers/ ) why I am so concerned – and why we think you also should be concerned – that a coming flurry of ICE worksite enforcements/I-9 inspections/audits, and therefore in many cases substantial fines is imminent :
“A great deal of this new-fangled I-9 regulatory switcheroo was brought about by the Covid crisis of 2020 and ongoing, and, while little good can be said for that whole trauma, since that day in March of 2020 ICE worksite enforcement actions have mercifully gone from constant and increasing to virtually non-existent, and that is certainly a positive for employers and their potential monetary liabilities.
Additionally, E-Verify itself has long been deemed to be somewhat of a “safe harbor” for employers enrolled in the program, and faithfully complying with its rules and regs.
But now we discover, in this same Federal Register post, that Employer Form I-9 ICE Audits will, by necessity, be increasing, as a RESULT of this Virtual I-9 Policy, and that’s certainly a problem, and, by necessity again, those audits will randomly lasso E-Verify enrolees in good standing, in order to prove up or to disprove the efficacy, security, and employment compliance of this new (pilot) program.
From the Secretary of Homeland Security, in the Federal Register, dated 07/25/2023 : “The INA specifically authorizes DHS, IER, and DOL officers to inspect Forms I–9, including any copies of employee documents retained with the corresponding Form I–9.[23] All employers are subject to audits and investigations. DHS will monitor and evaluate data and information from ICE audits conducted to assess any measurable impacts to system integrity as between the employers that use the alternative procedure and those that continue with physical document inspection.”
Attention should be drawn to the sentence “All employers are subject to audits and investigations.” That is chilling, and implicit in the paragraph is that ICE audits will be done, for this purpose, on a fairly random basis, targeting normal and generally compliant types of employers, including, by necessity – gasp! – E-Verify participants in good standing, rather than as heretofore has been the case, being sparked by suspicious hiring activity, employee complaints, or notoriously non-compliant industries and sectors.
Whether an E-Verify participant or not, whether in good standing, or not, if ever there was a time for employers to be afraid, to be very afraid in the Form I-9 world, in my opinion it just might be now.”
Their procedure for these ICE actions is fairly straightforward for government work, as is illustrated by this remarkably convoluted graphic. I’m pretty sure y’all don’t really want anything to do with that action, so below, we’ll discuss how best to mitigate liability risk, if and when they come for you, BEFORE they come for you..
Since this comes from an album called “More Songs About Buildings and Food, I’m thinking David Byrne would have zero objection to being linked at the bottom of a long human resources compliance diatribe.
David Adams,
The Form I-9 Company
Form I-9 Compliance/Remediation Services
david@formi9.net
P: 325.238.5866