Golf International (“Golf”) is a family-owned golf course and restaurant in Fountain Hills, Arizona. It is a small business and employs an average of 70 full and part-time employees. Golf was served with a Notice of Inspection (“NOI”) by Immigration and Customs Enforcement (“ICE”) on August 14, 2012. Golf submitted 157 I-9s for active and terminated employees, as well as the current payroll list and other relevant documents. The following month, ICE issued Golf a Notice of Suspect Documents, a Notice of Discrepancy, and a Notice of Technical and Procedural Failures. Additionally, in April of 2013, ICE served Golf with a Notice of Intent to Fine, seeking a penalty amount of $136,697 for failure to properly complete Sections 1, 2, or 3 of 129 of Golf’s I-9s. After an amended complaint by ICE, this amount was reduced to $113,742.05. One important issue tackled by the court in this case, that may be particularly of interest to employers, was that one of Golf’s I-9’s had a United States Air Force identification card recorded as a List C document in Section 2.
A recent decision, Kutty v. United States Department of Labor, from the Sixth Circuit of the United States Court of Appeals, reinforces a basic principle of immigration law with respect to H-1B visas for professional workers, which is that it is the U.S. employer (and not the foreign employee) who is responsible for the H-1B process, compliance with H-1B regulations, and fees related to the process.
Like so many other employers, an owner of medical clinics who hired workers in H-1B status, Dr. Kutty did not understand employer obligations under the H-1B process. As a consequence, the Department of Labor (“DOL”) found that the medical clinics were in violation of the H-1B regulations. The DOL assessed liability of over $1 million in back wages and over $100,000 in civil penalties.
Most HR professionals and hiring personnel want their I-9 forms to be perfect. HR professionals and hiring personnel who act as I-9 Administrators handling completion of I-9s employment eligibility forms for an employer are meticulous and conscientious by nature. When a mistake in filling out the form occurs, the natural inclination is to mark out the error thoroughly. The usual thinking goes: While striking through the information might get the job done, a thick black mark would be better. No, a scribble obliterating the miswrite is even more thorough. Better yet, why don’t I just use white out to completely hide the error? Pat myself on the back for an HR task well done. Right? NO! Why?
WHY SHOULD EMPLOYERS CARE ABOUT PROPER DOCUMENTATIONS OF CORRECTIONS ON I-9S?
Once an I-9 Administrator understands the policy behind no scribbling, no black marker, and no white out the Administrator will never make this classic “mistake” again. The I-9 forms are actually federal affidavits signed under penalty of perjury subject to prosecution by the federal government (under the umbrella of the Department of Homeland Security). The purpose of the form in the eyes of the government is to establish each employee’s identity and right to work in the United States. The government is laser-focused on this issue, and, since 2009, is quick to use the enforcement branch of the Department of Homeland Security (known as “ICE” – Immigration and Customs Enforcement) to investigate and prosecute employers who are unable to prove that each employee is who they claim, and is authorized to work in this country. As you know, liability now can range from several hundred dollars per I-9, to millions of dollars and federal prison time for owners, management, and I-9 Administrators.
WHAT IS THE BEST WAY TO CORRECT ERRORS ON AN I-9?
If the form information written in error is obliterated by scribble, black marker, or white out, then the Department of Homeland Security agent investigating the I-9s cannot see what was written previously on the form. In some cases, ICE may presume the worst, including bad intent, or knowledge of an immigration violation. A much better practice is drawing a single straight line through any error on the form, and then initialing and dating the form. It is important to remember that Section One corrections need to be initialed and dated by the employee, and Section Two and Three corrections initialed and dated by the I-9 Administrator. Procedures like this should be part of your Corporate Immigration Plan, Policies and Procedures based on ICE Best Practices and should be part of the I-9 Admnistrator training before she or he begins administering I-9s to new workers. If the employer is ever subject to an audit by ICE, the ICE officer can see that the employer has nothing to hide … no scribbles obliterating possibly fraudulent backdating of employment dates, or changing of employee names … you get the picture. So sometimes less “thoroughness” actually is more.