Form I-9 Compliance: Adapting and Thriving in an Era of Enhanced Enforcement

By John Mazzeo, Senior Director and Associate General Counsel, i9Success

While we largely know what we can expect from the new administration in these regards, there are still quite a few unknowns, including to what extent the proposed changes and rhetoric will actually be implemented and, if so, how long it will take to implement them. To that end, employers can get ahead of the game by taking the below actions now.

• Understand your organization’s risk profile: It is widely expected that organizations operating in industries where high rates of unauthorized employment are common, those with prior violations, those related to critical infrastructure, those operating in the gig economy, or those who file large numbers of petitions for nationals of adversarial countries (China, Iran, Russia) will be priorities for enforcement actions. By understanding the company’s risk profile, you can adequately prioritize next steps and budget accordingly.
• Conduct internal audits: Organizations should audit their records to ensure that Forms I-9 are completed correctly and timely as well as reviewing the submitted documents to determine if they appear to be genuine and reasonably relate to the individual who presented them. Companies would also be wise to audit their entire onboarding process – from job posting to Form I-9 completion and E-Verify processing – to determine compliance with anti-discrimination provisions of the Immigration and Nationality Act. Care must be taken during all internal audits to ensure that they are conducted without consideration of citizenship or immigration status or national origin. 
  
  These internal audits should also consider state law obligations related to employment verification, including state-based E-Verify mandates such as Florida’s Section 448.095.

• Review and Update Applicable Policies: Critically examine your audit results to identify areas of risk and work with both business and legal stakeholders to devise and implement solutions.  At a minimum, policies should address:
  
  
  1. Form I-9 completion (and E-Verify case creation, if applicable);
  2. handling gaps in employment authorization; and
  3. any possible discrimination in the hiring process or preference for noncitizens over United States citizens.

• Formalize and Implement Action Plans: Every organization should have a response plan for every interaction with law enforcement, including receiving and responding to a Notice of Inspection (ICE Audit) and if law enforcement is ever present on-site. This includes determining who the official representative is and what chain they report to, as well as training front line staff who are likely to encounter officers first.
  
  Important attention should be paid to the role of the Form I-9 and E-Verify vendor in audit responses. Determine what level of audit and/or document production support your vendor may offer, or you may need. During an ICE audit, organizations only have three days to produce all Forms I-9 and related documents for all employees. Vendors can make meeting this deadline exceedingly easy – or impossible – and it is important to know where you sit ahead of time.
• Review Agreements with Staffing Agencies or PEOs: Staffing agencies are thought to be a priority for worksite enforcement under the incoming administration. Companies who use them should review their agreements to ensure that the employment authorization verification duties are clearly spelled out, what type of support the vendor will give during an audit, and any indemnification provided if the vendor provides unauthorized labor.
• Enhanced Communication with Employees: Foreign national employees are highly likely to suffer anxiety surrounding their immigration status in the United States – or the immigration status of a loved one. Companies should consider holding Town Halls or otherwise communicating with foreign nationals about their status and if the organization is making any changes to their immigration policies.
• Monitor Legal Developments: Use resources available to you, including those available from i9Success, to keep tabs on enforcement trends and regulatory changes.

Parting Thoughts

Each change in administration brings with it new priorities and policy prescriptions which presents opportunities and challenges to human resource practitioners. By implementing the above now, practitioners can better serve their business stakeholders as well as providing empathetic allyship to their employees.

John Mazzeo’s distinguished career spans critical roles and contributions to the immigration compliance sector, highlighted by his tenure at DHS-ICE and his proactive engagement with the legal community. He currently serves as Senior Director, Associate General Counsel with i9Succes, a Vertical Screen company. Prior to joining i9Success, John served as Assistant Chief Counsel, Office of the Principal Legal Advisor, DHS-ICE in Philadelphia. He is a member of the Association of Corporate Counsel and the American Immigration Lawyers Association, where he serves as the Vice Chair of the Verification and Documentation Liaison Committee.