What Happens if my Employee is Found Not Authorized to Work in the US?

The early August ICE raids targeting Mississippi workplaces have resulted in at least 40 arrest warrants, and enforcement raids are predicted to continue.  What if ICE Workplace Enforcement shows up at your business, and it is discovered that your company is employing unauthorized workers?  The outcome will depend heavily on the status of your I-9 documentation.  Here are 5 scenarios…

Scenario #1)  Form I-9 was properly completed at the time of hire, and has been retained as required.   Relax.  There is no verification violation.  Unless the government is able to prove that you had knowledge of the unauthorized status of the employee, and were aware that the I-9 verification documents were fraudulent (not genuine), then you have performed your employer duties to the best of your ability.  An employer can’t be expected to possess the expertise to accurately discern illegitimate or fraudulent documents if they appear genuine.

Scenario #2)  The Form I-9 you have on file contains properly corrected errors or omissions.  As long as no improper modifications were made to the documents, the outcome should be the same as Scenario #1.  You may have employees make corrections to Part 1 by drawing a line through incorrect information, entering correct information, and then initialing and dating each correction.  The employer may correct information in Parts 2 and 3 in the same manner.  Never use heavy Sharpie ink, correction fluid, or anything that would obscure any of the original content on I-9 documentation!  As a best practice, USCIS recommends that you attach a signed and dated note to corrected I-9s explaining what happened.

Scenario #3)  You have an I-9 on file, but it was not completed within compliance deadlines.  Not the best situation, but better late than never.  While failure to comply with Form I-9 employment verification requirements is a civil violation that can subject you to fines and penalties, it is certainly worthwhile to follow through on collecting employment eligibility documentation in order to avoid any appearance of “engaging in a pattern or practice of hiring unauthorized aliens,” which is a criminal offense.  To achieve full USCIS compliance, make sure all I-9’s are completed by the employee on their first day of work, and by the company representative on or before the third day of work.

Scenario #4)  You have two sets of I-9 documentation for the same employee whose identity appeared to have changed in every way: name, SSN, date and place of birth, etc.  Interestingly enough, if the I-9 paperwork is properly completed, this situation likely does not present an employer liability.  When an employee who has been working under a false identity obtains work authorization and wants to regularize their employment records in their true identity, it is acceptable to complete a new I-9.  Write the original hire date in Section 2 and attach the new I-9 to the previously completed I-9 form with a written explanation.  Further instructions are in the M-274 Handbook for Employers.

Scenario #5)  Your I-9 documentation is missing, incomplete, or error-filled.  Your expensive attorney is probably picking out colors for a new Porsche, and hopefully will be able to convince authorities that your actions are a result of incompetence or non-criminal negligence.  Before this scenario occurs, we recommend conducting an internal I-9 Audit.  For assistance with the planning and completion of your I-9 audit, contact us at ConsultStu.  We will conduct a private internal I-9 audit that will itemize issues and corrective actions needed.

Companies seeking to receive public recognition for its best employment practices, protect its brand and be exempt from I-9 Form inspections for four (4) years, may seek to partner with ICE and enroll in the IMAGE program. Click here for more information about IMAGE and a list of partners and company members.  For more information about the Social Security Number Verification Service (SSNV), which is a free internet verification system, managed by the Social Security Administration, that employers can use to verify that your employee names and social security numbers match social security’s records, click here.

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