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I-9 Enforcement and its Impact on Employers

Immigration has become one of the most highly debated topics among politicians and residents alike. No matter what your view is, we know that this is a difficult and sensitive topic to navigate. As a business owner it can be even more complex.

We’re now seeing action being taken in our own backyard. Recently, immigration enforcement agents have been making visits to agricultural and non-agricultural businesses that have had a prior I-9 audit engagement within the last five years in Fresno County.

What is an I-9 audit? Employers are required to complete an I-9 form for each employee within three days of hire. These audits were established to prevent those who aren’t eligible to work in the U.S. from performing work.

Prior to an audit, employers should be contacted by the investigating agency, but with the recent implementation of AB 450 (effective January 1, 2018), employers must follow specific requirements under California law. An employer must now give written notice to employees of an immigration agency’s review of records within 72 hours of receiving the request. Here are the standards for the notice:

  • Be posted in the language the employer normally uses to communicate with employees
  • Include the name of the immigration agency conducting the inspection
  • Include the date when the employer received the notice
  • Explain the nature of inspection (to the extent known)
  • Include a copy of the Notice

In addition, AB 450 contains the following provisions

  • Employers cannot re-verify a current employee’s employment eligibility, except as otherwise required under federal law
  • Employers must provide “affected employees” (i.e., those identified by the immigration agency as possibly lacking work authorization) with a copy of the immigration agency’s notice of the employer’s receipt of the results of the inspection (the “Notice of Suspect Documents” (“NSD”) within 72 hours, in addition to a written notice of the obligations of the employer and the affected employee arising from the results. This notice must be hand-delivered, if possible; otherwise delivered by mail and email. It should also contain
  • A description of any deficiencies identified in the notice;
  • The time period for correcting deficiencies;
  • The time and date of any meeting with the employer to correct deficiencies; and
  • Notice that the employee has the right to representation during any meeting scheduled with the employer.
  • Employers may be subject to civil fines ranging from $2,000 to $10,000 per violation, if they fail to comply with new law.

If you are contacted, you should expect to receive a notice of an inspection. The enforcement agent will be able to conduct an initial meeting with you to explain the procedures utilized in an I-9 audit and to answer your questions.