Employment Eligibility Verifications in California: Reduce the Risk of Fines in I-9 Audits

I-9 audits can strike fear into the heart of even the most diligent HR professional. We try to ensure that we are meeting all obligations to only hire individuals who are legitimately eligible to work in the United States, but what can California employers do to protect ourselves in the case of an I-9 audit?

In a CER webinar titled ” I-9s, E-Verify, and More: 2012 Immigration Update for California Employers,” Alan Tafapolsky outlined California employers’ legal obligations and gave some guidance on your employment eligibility verification process. Having a consistent process will at least give you a good faith defense should you be faced with citations from an I-9 audit.

What Are My Employment Eligibility Verification Obligations?

It is illegal to hire or refer for a fee someone who is not authorized to work in the United States, and, conversely, it is unlawful to use the employment verification process to discriminate on the basis of citizenship or ethnic origin. How do you stay in compliance?

Here are your obligations:

Any day before or on the first day of hire, the employee must complete and sign and choose one of the three boxes on the I-9 form, noting their employment eligibility status. The employer must personally review the documents showing proof and certify that the documents are genuine within 3 days of hire. You should make a photocopy of the documents and staple it to every form. Be consistent to alleviate discrimination complaints.

Tafapolsky advised, however, that an employer should never ask for a particular document, as doing so could become the basis of a discrimination complaint. “You simply give the employee a list of the appropriate documents. If the employee provides an unacceptable document to you, you need to give them the list again . . . give them the list back and don’t request a specific document.” If an employee does not provide an acceptable document within 3 days of hire, you should consult with counsel and possibly suspend the hire.

After the employment eligibility verification process is complete, the employer must retain the I-9 documents for at least 3 years after hire or one year after termination, whichever is later. This is important for California employers because you will be required to produce such documents in the event of an I-9 audit.

Consequences of Not Meeting Employment Eligibility Verification Requirements

If you’re subject to an I-9 audit or investigation, you will receive notice of inspection 72 hours in advance. You may also receive a request for documents and administrative subpoena. Immigration and Customs Enforcement (ICE) agents may request a meeting with you for further information. If you are faced with an I-9 audit, remember to make copies of everything that is given to ICE.

If you do become subject to an I-9 audit, you may face fines and even possibly imprisonment. Criminal charges can range from misdemeanors to felonies for managers and executives. The company could also be required to forfeit assets. Tafapolsky noted that “one of the things that is overlooked is that people tend to view governmental investigations as a single investigation, but usually once you’re visited by one, it spawns parallel investigations and civil and criminal suits. With all the impact that can happen to employee morale and, for public companies, affecting stock prices, careful handling of federal government and investigations and employers’ liabilities regarding those things are very, very important.”

As you can see, it pays to stay in compliance.

To register for a future webinar, visit CER webinars.

Mr. Tafapolsky is the Managing Partner of Tafapolsky & Smith’s San Francisco office. He co-founded the firm after more than seven years of specializing in business immigration law.