By Joel H. Paget Ryan, Swanson & Cleveland, PLLC
On March 8, 2012, the Director of U.S. Immigration and Customs Enforcement, (“USICE”), John Morton, submitted a written report to the House Committee on Appropriations in which he reported: “Since January 2009, ICE has audited more than 6,468 employers suspected of hiring illegal labor, debarred 521 companies and individuals, and imposed more than $76.4 million in financial sanctions. This focus will continue this year.” We already have reports of more and more audits throughout the state of Washington. So, it is just a matter of time before you are subject to such an audit. THE AUDIT USICE agents only have to provide employers (dealers) 72 hours to produce the Forms I-9 for the agency to review. It is therefore more critical than ever to perform a self-audit on all of your Forms I-9 now to help avoid potential fines and penalties. If agents from USICE or the Department of Labor show up at your dealership be sure to immediately contact a knowledgeable immigration attorney. If there is missing data that is technical or procedural, you will have at least 10 days after the audit to fix the problems. But only the employee can correct Section One and the employee may be long gone. So you will not be able to correct Section One. Now is the time to audit your Forms I-9 and correct them. There are correct ways to amend the forms, so consult a competent immigration attorney.
You should be prepared for the scope of the investigation. Investigators are requesting records of all current employees as well as any employees terminated within the last year. All independent contractors, temporary staff from an agency, and “on-call” individuals will be scrutinized and the dealer must produce a roster and supporting documentation. Dealers must produce Social Security no-match letters received over the past year. The dealer must provide an employee roster, payroll reports, IRS quarterly tax statements and Washington State L&I reports. TEN DO’S AND DON’TS ON INITIAL PREPARATION OF THE FORMS 1. Do ensure you are using the correct version of the Form I-9. Check the website www.uscis.gov every six months to see if there is a new form. 2. Do keep all the Forms I-9 in a separate folder for current employees and another for terminated employees. You should not keep the Form I-9 in each employee’s personnel file. 3. Do make a copy of the document(s) submitted by the employee for your file. 4. Do not accept any document that has an expiration date that has expired.