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Under the provisions of the Immigration Reform and Control Act of 1986 (IRCA) all employers are required to have on file Form I-9, Employment Eligibility Verification, for each newly hired employee, citizen and non-citizen alike. This law has been in effect since November 1986 and requires the employer to verify the employment eligibility of a newly hired individual within three (3) business days of the employee’s first day of work.

The employer does this by reviewing and recording the individual's identity and employment eligibility document(s) and determining whether the document(s) reasonably appear to be genuine and related to the individual.

Failure to complete and retain Form I-9 can result in significant civil and criminal penalties and recently, the Department of Homeland Security/Immigration and Customs Enforcement (DHS/ICE) have become more aggressive in their campaign to ensure that all U.S. employers comply with these provisions by conducting audits of employers’ Form I-9 files. Since the spring of last year, more than 1600 businesses nationwide have been suspected of cultivating illegal workplaces by knowingly employing illegal workers and were served with Notices of Inspection (NOIs) by ICE. The notices alert business owners that ICE will be inspecting their hiring records to ascertain whether or not they are complying with employment eligibility verification laws and regulations. As recent as early this week, an additional 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee received NOIs.

In the absence of comprehensive immigration reform, these inspections are simply another tool with which the federal government can enforce employment and immigration laws. Unlike past administrations which focused on the unauthorized employee, this method has an increased focus on holding employers accountable for their hiring practices and to ensure that all U.S. employees have the proper work authorization.

In the event of an audit, as an employer, you will have three (3) days to present your I-9s for inspection.    The I-9s will be examined for missing and/or incorrect information and penalties will be assessed accordingly. The penalties could range anywhere from $110 for each paperwork violation of an I-9 to $16,000 for each unauthorized worker employed.

Since our firm has developed a concentration in workplace enforcement, a consultation may be necessary. We have already audited the I-9s of numerous companies including financial and banking institutions, restaurant chains, produce proprietors, international retailers doing business in the United States, nuclear power service providers, Fortune 500 companies with over 13,000 employees and small mom and pop companies with only a few employees. We have yet to see a fully I-9 compliant client.

For further information on Form I-9, please e-mail awildes@wildeslaw.com.


For Further Information On How We Can Help Your Firm Meet Its Employment Eligibility Verification Obligations, Please Contact Amy Wildes At amy@wildesweinberg.com

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