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BusinessColumnistsJamie Herzlich

Be ready for tougher immigration enforcement, experts say

Expect more ICE audits of I-9 forms and be ready, immigration lawyers say.

Form I-9 is used to verify employees' identity

Form I-9 is used to verify employees' identity and eligibility to work in the United States. Photo Credit: U.S. Immigration and Customs Enforcement

Employers can expect greater scrutiny in the New Year when it comes to worksite immigration enforcement.

Thomas Homan, acting director of U.S. Immigration and Customs Enforcement, recently said the agency would be increasing enforcement efforts at workplaces by four to five times current levels.

Local immigration experts say employers should take heed and re-evaluate their policies and practices to make sure they’re in compliance, and consider conducting an internal audit.

“I think it’s a serious warning to employers,” says Carmelo Grimaldi, a partner in the labor and employment law practice at Meltzer, Lippe, Goldstein & Breitstone in Mineola.

He believes great scrutiny will be placed on review of the Form I-9, the federal form employers and employees must complete to verify employees’ identity and eligibility to work in the United States.

ICE enforcement agents will want to see if the form has been filled out completely and correctly, and see if “an employer knowingly hired or knowingly continued to employ someone that isn’t authorized to work in the U.S.,” Grimaldi says.

ICE spokeswoman Danielle Bennett, in an emailed statement to Newsday, said: “ICE’s worksite enforcement strategy continues to address both employers who knowingly hire unauthorized workers and the workers themselves. While we focus on the criminal prosecution of employers who knowingly hire illegal workers, under the current Administration’s enforcement priorities, workers encountered during these investigations who are unauthorized to remain in the United States are also subject to administrative arrest and removal from the country.”

Homan has directed ICE Homeland Security Investigations to step up its efforts in this area to include “pursuing more investigations and conducting more I-9 audits.”

This comes at a time when employer fines for I-9 paperwork violations have increased and now range from $216 to $2,126 per violation, says Alanna Frische of Prestige Employee Administrators Inc., a Melville-based professional employer organization.

Among the more common mistakes is not filling out all the fields on the forms, she says. Section 1 is filled out by the employee, and employers need to make sure every field is completed. Even in fields that may not be applicable to the employee, an N/A needs to be present, she says.

Section 2 provides a list of acceptable documents the employer needs to verify that an employee is authorized to work in the United States, she says. Keep in mind an employer can’t request a specific document. Rather, the firm should let the employee choose from the list; otherwise it can be construed as a form of discrimination, says Frische.

Review and verify all Section 2 documents carefully and ensure you’re using the most current I-9 form for new hires (a revised form became effective Jan. 22), says Clare Hart, CEO of Manhattan-based Sterling Talent Solutions, a provider of employee background screening services.

Note that Section 1 must be completed within one business day of when the employee begins work, and Section 2 must be completed within three business days, she says.

Immigration attorney Henry Mascia, an associate at Rivkin Radler in Uniondale, advises employers to review their procedures for verifying the work authorization of prospective or new employees. They should also know when existing employees’ work authorizations will expire, and have a system to notify the proper person to reverify the authorization before that.

Mascia also recommends conducting an internal audit, by choosing a sampling of I-9s at random to ensure they’re completed properly.

Employers should also review their practices pertaining to H1-B visa holders, as the Trump administration has put a priority on stricter enforcement of the H1-B program, which makes it possible for U.S. companies to hire highly skilled foreign workers, he says.

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