REPORT FROM THE US— As U.S. Immigration and Customs Enforcement steps up enforcement of I-9 audits, there are several proactive measures hoteliers should take to avoid penalties and fines, according to attorneys.
The issue has become more top-of-mind during the past year, as ICE has added more auditors and enhanced technology and can now issue more notices of enforcement, said Paul W. Virtue, partner with Baker & McKenzie LLP, during a webinar titled “I-9 Audits 101: Planning a Compliance Strategy.”
Virtue, who previously served as the executive associate commissioner and general counsel of the U.S. Immigration and Naturalization Service, said the government has shifted its focus in recent years. Whereas in the past, audits were directed at the undocumented workers themselves, today the emphasis is on their employers.
Audits are initiated by:
• tips from the public or employees;
• employers in sensitive industries;
• Social Security “no-match” letter history; and
• random sampling.
“It’s intended very specifically and publically to keep employers honest by going through the random notices of inspection,” Virtue said.
While ICE denies targeting companies with household names, Virtue said there is a certain, unstated incentive for doing so.
“Once a case is made public with respect to a household name, it has to get people’s attention,” he said. “It does behoove big companies … to make sure their compliance house is in order in anticipation of a potential audit.”
Penalties and fines can range from tens of thousands of dollars into the millions, said John Fay, VP of products and services and general counsel of the LawLogix Group, which hosted the webinar.
And that’s just the tip of the iceberg, he added. Other costs can emerge in legal defense, the internal costs of gathering and redoing error-prone I-9 systems and hits to a company’s brand equity in court of public opinion.
I-9 red flags
The attorneys highlighted five red flags hoteliers should look out for and immediately address should they arise.
1. Complaints from employees
If a current or ex-employee writes a note or sends a tip alleging the presence of unauthorized workers, hoteliers should act immediately, Virtue said.
“Employers need to take that seriously and investigate and make an assessment of whether this is credible information,” he said. “… It’s not much of a leap to assume that those employees could bring that to the attention of immigration and custom enforcement.”
In the event a hotelier does get audited, ICE wants to see documentation that any allegations were addressed seriously.
2. High incidence of Social Security no-match letters
The first thing hoteliers should do if the Social Security Administration finds discrepancies in employee records is to ensure documentations was filled out correctly, Virtue said. Oftentimes, the issue can be traced to a simple processing or filing error.
If internal records check out, hoteliers should follow up with employees directly and have them confirm personally their Social Security number is accurate.
3. No formal I-9 policy
Company policies should include training and procedures for filling out and storing I-9 documentation, Virtue said. They should also include specific instructions on which managers and supervisors are responsible for those tasks.
4. No self-audits performed within the past two years
In-house evaluations, Virtue said, should:
• ensure written compliance manuals are accurate and up-to-date;
• address recruitment, hiring and termination; and
• specify training for I-9 and E-Verify filing and documentation.
5. An entirely paper-based I-9 system
The I-9 form is wrought with such complexity and ambiguity that even the most experienced hotel professional can fall victim to mistakes. The risk is even more pronounced when the documentation process is conducted on paper, where it’s harder to maintain consistency over time, Fay said.
Hoteliers should switch to digital documentation when and where possible, he said.