10 best practices for I-9 compliance policies

WebDev LLC is a privately-owned 25-person Internet applications development firm in the Upper Valley. The one H-1B worker on WebDev’s payroll routinely completed an I-9 form with all new hires, as part of the standard battery of documents and forms for new employees.

Like most human resources managers in New England, WebDev’s HR manager took notice of the highly publicized raid last year by Immigrations and Customs Enforcement at Michael Bianco Inc. in Fall River, Mass., a manufacturer of military backpacks and survival vests. The raid landed the owners of the firm in jail and put scores of undocumented workers into removal proceedings. But WebDev’s HR manager assumed that she had nothing to learn from the Bianco raid because it occurred in Massachusetts, where there is a much higher percentage of foreign population than New Hampshire.

But on May 12, 2008, ICE conducted a similar exercise at Agriprocessors Inc., in Postville, Iowa. Nearly 900 ICE agents detained some 400 employees suspected of being undocumented workers. Although Iowa’s percentage of foreign workers may be closer to New Hampshire’s, WebDev’s HR manager assumed that she had nothing to learn from the Agriprocessors raid because it involved an old, low-skilled, labor-intensive industry — nothing like WebDev’s operations.

Then came the raid on Aug. 25 of Howard Industries, in Laurel, Miss., a high-tech manufacturer of electrical and medical equipment. WebDev’s HR manager was struck by Howard’s press release following the raid:

“Today, Howard Industries was visited by the U.S. Immigration and Customs Enforcement Agency to ascertain if all employees are U.S. citizens or otherwise legally authorized to work in the United States. Howard Industries runs every check allowed to ascertain the immigration status of all applicants for jobs. It is company policy that it hires only U. S. citizens and legal immigrants.”

That is exactly the kind of thing that WebDev’s HR manager would say about WebDev. Should WebDev be worried? What lessons should WebDev and others be learning from these examples?

Although WebDev is a fictional company, the three companies described in our hypothetical are real. They represent only a few of the more high-profile raids and audits conducted by Immigration and Customs Enforcement in recent years.

ICE raids that nab large numbers of undocumented workers always make headlines. ICE audits that reveal large numbers of improperly documented I-9s for lawful workers get less attention.

Nevertheless, ICE is clearly in an aggressive enforcement mode. Even if your company employs no foreign workers, you are not immune from audit and sanctions if you don’t have a properly completed I-9 employment eligibility verification form for every employee in your workforce hired any time after Nov. 6, 1986. Financial penalties for improperly completed I-9s can be assessed on a per-employee basis and can run into the tens of thousands of dollars, depending on the size of your workforce.

The I-9 is a deceptively simple-looking one-page form. Yet, when we audit I-9s for our clients, error rates in excess of 50 percent are not uncommon. They are, however, unnecessary. For employers, the best defense is a good offense. With a little bit of effort, you can have an I-9 program that will keep you out of the headlines.

Here is our list of the 10 best practices for an I-9 compliance program:

1. Have a written policy

2. Store I-9s separate from personnel files

3. House I-9s in three separate notebook binders, one each for current employees for whom re-verification will never be required, current employees requiring re-verification and terminated employees

4. Designate I-9 specialists and provide training and refresher instruction as appropriate

5. Complete I-9s at the same point in the hiring process for all employees

6. Retain copies of supporting documents that are presented by employees during the I-9 process

7. Make the instructions to the I-9 available to the newly hired employee at the time the I-9 is being completed

8. Develop resources and reference materials for use by your I-9 specialists, including a copy of your written policy, a copy of the government’s I-9 handbook for employers and the like

9. Periodically audit your I-9s to ensure adherence to your policy

10. Use your audits as an occasion to review and revise your written policy to address any problem areas revealed by your audit

Employers have been completing I-9s for more than 20 years. In many cases, however, they are completed with little thought and insufficient attention to detail, leaving employers unnecessarily vulnerable to sanctions and penalties for document violations. Following these simple and straight-forward best practices will not necessarily give you a perfect program or make you immune from audit or penalty, but it will impress a government auditor with the good-faith effort you are making to comply — and that goes a long way toward reducing your risk.

Tom Hildreth, chairman of the Corporate Department of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1177 or thomas.hildreth@mclane.com.