Update #3: What To Do About Immigration I-9 Forms
Do not allow any government entity, and specifically DO NOT ALLOW the Customs & Immigration Service, or U.S. Homeland Security to obtain or review your records UNLESS provided a Notice of Inspection.
If you receive a Notice of Inspection for I-9 forms, you must post a notice for employees immediately informing them that the process will occur.
If the I-9 review raises questions about any particular employee’s status, that employee must be informed and allowed to participate to clarify their status. Also, employers can only "reauthorize" a I-9 form as required by the process.
What: Follow the procedures for Immigration I-9 forms carefully, do not ask current employees to fill out new forms after having once completed forms at time of hire, have all new employees use the current I-9 form (latest form was issued 7/11/2017) and complete Section 1 of the form no later than the first day of work.
- DO NOT suggest or require any particular or specific form of identification. If in doubt, rely on the instruction sheets of the I-9 forms or contact an employment attorney.
- Record the expiration date of appropriate documents provided by new employees, and follow up for re-verification prior to the expiration date of those documents.
- Carefully review the originals of any documents submitted by new employees, record the required data, and complete all spaces on the I-9 form or enter not applicable if appropriate.
- Do not allow any government entity, and specifically DO NOT ALLOW the Customs & Immigration Service, or U.S. Homeland Security to obtain or review your records UNLESS provided a Notice of Inspection.
- If you do receive a Notice of Inspection – you have a right to three days and you should always demand that time. If you get a notice – you are strongly advised to have assistance of experienced legal or human resources consultants prior to the 3 day period for furnishing the I-9 forms required by such Notice. You are required to require a search warrant or subpoena for any other access to your records or working areas of your business.
- If you undergo an I-9 document audit or inspection, and have notice of potential deficiencies, you must provide written notice of such potential deficiencies to any employees affected.
How: Make sure that all employees who have responsibility for your premises and employee records are aware of the requirements of Immigration Law, the I-9 process, and this new California law which restricts access to work places and employee records without search warrants or subpoenas.
- If you receive a Notice of Inspection for I-9 forms, you must post a notice for employees immediately informing them that the process will occur.
- If the I-9 review raises questions about any particular employee’s status, that employee must be informed and allowed to participate to clarify their status.
- Also, employers can only "reauthorize" an I-9 form as required by the process. We strongly encourages all employers to self audit or have outside help in auditing their I-9 forms prior to January 1, 2018. Our experience in auditing I-9 forms indicates that quite often there is a "error" rate of 25% or more in I-9 forms, most of which are simple or unintended errors which can be quickly corrected if identified.
- It is not clear if the new California law will approve of these self-audits after 1/1/2018, although nothing in the law details such prohibition and the fines from Customs & Immigration Service are for $225.00 or more if they find such errors in I-9 forms.
Why: California enacted AB 450 which added Section 7285.1 to the Government Code – which prohibits employers (all private and public employers) from cooperating with any federal immigration authorities – other than complying with the Notice of Inspection of I-9 forms and the follow up process.
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