Are you compliant? The law requires employers to review documents from each worker they hire to verify that the worker is legally present in the United States and authorized to be employed. This is done on Form I-9, Employment Eligibility Verification. While the Obama Administration had made worksite enforcement a major priority by conducting a record number of I-9 audits, the Trump Administration has made those previous efforts pale in comparison.

Criminal investigations, business audits, and arrests by U.S. Immigration and Customs Enforcement (ICE) surged in FY18 compared to the previous fiscal year, following a commitment made by ICE in late 2017 to step up its worksite enforcement efforts across the country. Specifically, ICE’s Homeland Security Investigations (HSI) opened 6,848 worksite investigations in FY18 compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively. All of these categories surged by 300 to 750 percent over the previous fiscal year.

While perhaps hiring foreign nationals without proper work authorization was once considered a cost of doing business, especially in the restaurant and hospitality and construction industries, owners and managers should rethink the practice and know their risks.

In the current environment, even employers who have not been accused of knowingly employing undocumented workers can expect site visits and can be held liable for clerical violations, subjecting them to steep civil fines. Well-intentioned employers often find inadvertent paperwork errors or technical violations during their internal audits; some seemingly harmless errors and omissions are actually considered substantive violations that carry significant fines. For example, the failure of an employer to ensure that an individual employee checks the Form I-9’s box for “citizen,” “lawful permanent resident,” or “authorized to work until a specified date” is a substantive violation. An employer’s failure to provide the date of hire in the attestation portion of the I-9, while a technical violation, is still actionable even if other parts of the form are dated.

While failure to check documents can have its consequences, so can over-documentation. By law, an employer should only accept either a List A document or a combination of List B and List C documents, but not both. Over-documentation occurs when an employer records a List A document and any combination of Lists B and C documents on the I-9 form. Over-documentation most often results in two different scenarios:

What’s the big deal? Once too many documents have been recorded on the I-9 form, over-documentation has occurred. Unless discovered and corrected immediately, over-documentation constitutes a permanent error and the employer can be held liable for immigration-related unfair employment practices — in other words, unlawful discrimination.

To avoid these problems, an employer should:

This area of immigration compliance can be confusing and complex, and can have unintended legal consequences. Employers are wise to take preventive measures and to consult with an attorney before embarking upon this alone.