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Natural Disasters and I-9 Compliance

546px-Sandy_Oct_25_2012_0400Z.JPGEmployers must adhere to a strict set of regulations regarding verification of employee work eligibility. Immigration and Customs Enforcement (ICE) has increased the number of audits in recent years, and the penalties for employers who are not in compliance can be steep. The impact of Hurricane Sandy, or any comparable disaster, on employer compliance is not yet fully known. U.S. Citizenship and Immigration Services (USCIS) has offered some guidance on how to avoid compliance issues in the wake of a disaster, and businesses can follow a few simple steps to keep their records in order.

Hurricane Sandy hit New York City, large areas of New Jersey, and other parts of the eastern seaboard in late October 2012, causing as-yet-unknown amounts of damage, displacing thousands of people and leaving thousands more without power. The storm disrupted transportation, and therefore business, all over the greater New York City area. I-9 compliance may seem like the least of many businesses’ worries, and in the immediate aftermath of such an event, it probably is near the bottom. Businesses should worry first about the safety of their employees and the stability of their operations. Once they have addressed those concerns, however, they should make certain that they maintain compliance with immigration regulations.

According to USCIS, employers who keep paper I-9 records, as opposed to digital records through systems like E-Verify, must keep original I-9 forms with employee signatures for at least three years after hiring the employee or one year after the employee’s termination date, whichever is sooner. It is not sufficient for employers to keep photocopies or digital copies of the I-9 forms.

The requirement to keep original paper I-9 forms will obviously be difficult for businesses who suffer serious physical damage and loss in a disaster like a hurricane. Businesses that are contending with such losses should, at the earliest practical time, have their employees complete new I-9 forms to replace any that are missing or destroyed. USCIS does not provide any specific timeline or deadline for replacing I-9 records. Employers should communicate the need for new documentation to all employees as clearly as possible, and use the same care and diligence as though each employee was a new hire.

USCIS instructs employers to include a memorandum with the new I-9 forms explaining why they required replacement. The memorandum should describe the disaster and explain how it affected the business’ I-9 records, including specific information on how the records were lost or destroyed. It should also describe how the employer determined that the previous records were lost, and how it obtained replacement forms and documents from employees. The employer should also include documentation showing how the disaster affected business activities, including losses and insurance payments, in order to provide context for the loss of the I-9 records. Finally, in the event that an employer receives a Notice of Inspection indicating an imminent ICE compliance audit, it should notify ICE immediately of the losses attributable to the disaster.

Immigration attorney Samuel C. Berger, P.C. helps immigrants seeking visas to work for, or invest in, a New York or New Jersey business, and helps businesses petition for skilled immigrant employees. To schedule a consultation with one of our attorneys today, contact us online or at (212) 380-8117.

More Blog Posts:

Justice Department Sues Employer for Alleged Violations of I-9 Rules, New York & New Jersey Immigration Lawyer Blog, October 19, 2012
ICE Fines New Jersey Business Over $600,000 for Immigration Employment Violations, New York & New Jersey Immigration Lawyer Blog, September 21, 2012
New York Company Joins Federal Immigration Compliance Program, New York & New Jersey Immigration Lawyer Blog, May 4, 2012
Photo credit: ‘Sandy Oct 25 2012 0400Z’ by NOAA Environmental Visualization Lab ( [Public domain], via Wikimedia Commons.