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Checking those Form I-9s (I-9s)! It is a good time to conduct an internal audit of I-9s because inspections and fines have not gone away and a new I-9 edition was published recently. An Administrative Law Judge in the Office of the Chief Administrative Hearing Office fined a staffing company $276,000 in June, 2017, reduced from the $367,000 originally imposed by Immigration and Customs Enforcement (ICE). While this is less than the highest fine of $605,250 imposed in 2015 on an events planning company for incomplete I-9s (there were only 4 missing I-9’s out of 339 employees), the reason for the staffing company’s fine was a failure to produce the I-9s to ICE within the 3 days of its request. So “Rule no. 1” taken from this latest large ICE fine: have complete I-9s ready and available for inspection at all times.

Second, use the latest Form I-9. A new I-9 Form went into effect on July 17, 2017. The January 1, 2107 version can be used until September 17, 2017. After that, employers must only use the July 17, 2017 iteration. “Rule no. 2”: never rely upon pre-printed I-9 forms. Always go to the website and download the latest version.

Here is guidance from ICE and the Office of Special Counsel at the US Department of Justice (OSC) on parameters of a permissible internal audit.

Final thoughts: an employer is considered to “know” an employee is not employment-authorized through actual knowledge and “knowledge which may be fairly inferred through a notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about an individual’s unlawful employment status.” When doing an internal audit, an employer may become “knowledgeable”, applying either of the above definitions, about a legitimate employment eligibility issue. An employer who has actual or constructive knowledge that an employee is not employment authorized, yet continues to employ that individual, can incur heavy fines and even imprisonment for both company owners and managers. Therefore, a carefully conducted internal audit may require appropriate follow-up as itemized above.

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