Skilled Nursing Facility

Prepare for anticipated sweeping ICE audits now by getting I-9 forms in order

To avoid hefty fines during an anticipated spike in I-9 form audits this summer, home care agencies should take time now to ensure employees and paperwork comply with federal regulations.

As the need for home care aides grows across the country, so, too, does immigrants’ representation in the workforce. Nearly half of 656 aides who responded to a recent survey conducted by Massachusetts-based Home Care Aide Counsel said they were born outside the United States. And regardless of whether employees are hired legally, their employers are more likely than ever to fall victim to an audit.

U.S. Immigrations and Customs Enforcement Director Tom Homan forecasted the increase in I-9 form audits during a presentation in 2017, stating he ordered ICE agents to quintuple worksite enforcement actions in 2018, according to CNN.

Homan has stayed true to his word, with nearly quadruple the arrests related to worksite enforcement in fiscal year 2018 compared to the year prior, according to ICE reports. The statistics represent two-thirds of the federal fiscal year, which runs Oct. 1 through Sept. 30.

Officials expect the upward trend to peak in the coming months, possibly targeting industries like home care that have a historically large immigrant representation.

“Enforcement by ICE is on the dramatic increase,” says Bruce Buchanan, an immigration lawyer from Nashville specializing in immigration compliance and ICE inspections. “They’ve said they want their inspections to make you feel like you do about the IRS — if you screw up, you’re going to get caught.”

Fines can be applied for employing unauthorized workers or errors in filling out I-9 paperwork, and in some cases, criminal charges can be filed. Fines can reach nearly $5,000 per violation, and criminal charges for violating immigration law could result in prison time if the employer is found to repeatedly violate such laws.

Verify whether employees are eligible

An electronic verification system like E-Verify can help, Buchanan says. E-Verify allows employers to submit employee information into an online system that then determines, in a matter of seconds or minutes, if the employee is eligible to work in the United States.

The free service is overseen by the U.S. government and is simple to use, Buchanan says. The only information needed to complete the process is what an employee provides on an I-9 form, such as date of birth, Social Security number and passport information.

When that information is submitted, it is compared to records available to the U.S. Department of Homeland Security and the Social Security Administration, according to the E-Verify website.

Despite some employers’ assumption that using E-Verify adds to their workload, Buchanan said it is worth the extra time to reduce long-term headaches.

Eight states — Arizona, North Carolina, South Carolina, Mississippi, Alabama, Georgia, Tennessee and Utah — require employers to use E-Verify to some extent or risk fines from the state government. Buchanan, who co-authored “The I-9 and E-Verify Handbook: A Guide to Employment Verification and Compliance,” said he expects more states to follow their lead.

With ICE to gradually increase inspections to more than 15,000 annually, Buchanan says, it might not be a bad idea.

Spotlight shines on immigration

Immigrants face heightened public scrutiny amid national news reports that thousands of children have been separated from their families by federal authorities while crossing the Mexico border into the United States.

And President Donald Trump’s travel ban, restricting entry to the United States from seven countries, recently was upheld by the U.S. Supreme Court. That ban could further limit who is eligible to supplement the growing need for home care aides, industry experts say.

With growing tensions and speculations could come a more hostile perception of immigrant workers — so it’s important to ensure those employees know they are welcome, Buchanan says. Take swift action to rectify harassment that occurs in person or on social media and be sure to be available to hear any complaints.

Susan Cohen, an immigration attorney with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. in Boston, suggests also duplicating important office documents in the native languages of immigrant employees, as well as providing a translator during meetings when necessary.

In many cases, however, there isn’t much the employer can do if an employee faces deportation.

“Sometimes employers can provide counsel if they don’t want to lose those workers, or if it’s not feasible to do that, they can at least help them look for a lawyer,” Cohen says. “Immigrants make up a good chunk of the home health workforce, so I could see the audits and increased scrutiny having a great impact on the industry.”

Prepare your agency for an I-9 audit

  • Get ready before the threat of an audit arises. Don’t be left scrambling to rectify errors at the last minute. Under the advisement of an attorney, conduct annual or bi-annual self-audits that adhere to the same standards as federal regulations, Buchanan suggests.
    It’s your choice whether during a self-audit you review a sample group or all employees’ documentation, but note that you must conduct your review in a non-discriminatory manner, according to ICE documents.
    Any errors found can be corrected by drawing a line through the incorrect information and entering the corrected data, then dating the change. If it is confirmed during a self-audit that the company is employing someone unauthorized to work in the country, the employer is required by law to terminate employment.
  • Be conscious of your role as the employer in the I-9 process. Many employers get careless when it comes to reviewing I-9 forms, and that can lead to a mountain of fines down the line, Buchanan says.
    He urges employers to thoroughly review documents because they are liable for any errors, even on the pages employees fill out.
  • Create an I-9 policy. The policy should include when the form is to be filled out by a new hire, who is responsible for verifying information provided by the employee and how to handle remote hires, Cohen says.
    There are many examples online of I-9 policies, she adds, and an immigration or labor attorney should be equipped to help create one for any agency.
  • Steer clear of common, avoidable mistakes. Ensure all new hires provide proper documentation to verify citizenship or status. But don’t request more documentation than what is specified on the I-9 form. Both are violations that can result in monetary penalties. — Caitlynn Peetz (cpeetz@decisionhealth.com)

Editor’s note: Learn how to navigate the many legal and compliance issues facing the home care industry today during a dedicated track at the 21st Annual Private Duty National Conference & Expo Nov. 12-14 at the Aria Resort & Casino in Las Vegas.