There has been a noticeable surge in audits of employers’ I-9 work authorization verification forms, conducted by U.S. Immigration and Customs Enforcement (ICE). There was a significant increase in I-9 audits and related enforcement activities in fiscal year (FY) 2018, and FY 2019 appears to be following that trend, with 5,000 I-9 audit letters sent to employers recently. Employers who do their due diligence in advance can avoid mistakes and audit troubles, and consequent penalties, down the line.
Audits Continue to Trend Upward
In FY 2018, Homeland Security Investigations opened 6,848 worksite investigations compared to 1,691 in FY 2017; initiated 5,981 I-9 audits compared to 1,360 in FY 2017; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively, in FY 2017. All of these categories surged by 300 to 750 percent over the previous fiscal year. HSI said it “is carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers.”
The Process: What Can an Audited Employer Expect?
Typically, ICE initiates the inspection process by having agents serve a Notice of Inspection (NOI) on an employer compelling the production of its I-9 forms. Recently, in order to serve more notices ICE has sent the NOIs by mail. By law, employers have at least three business days to produce the I-9s. Often, ICE will ask for supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses.
ICE agents or auditors then inspect the I-9s for compliance. When technical or procedural violations are found, an employer has 10 business days to make corrections. An employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers determined to have knowingly hired or continued to employ unauthorized workers may be fined or even criminally prosecuted. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.
Monetary penalties for knowingly hire and continuing to employ violations range from $375 to $16,000 per violation, according to the fact sheet, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which includes failing to produce an I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE says it considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.
Once the audit is over, ICE sends a notice of the results to the employer. Commonly, these may include a notice of inspection results (compliance letter), suspect documents, discrepancies, technical or procedural failures, warning, or a Notice of Intent to Fine (for substantive uncorrected technical, knowingly-hire-and-continuing-to-employ violations, in which case an employer can either negotiate a settlement with ICE or request a hearing).
Tips for Employers
- Make sure your I-9 form is up-to-date (see the USCIS website at the link below—the latest version of the form, as of August 2019, has an edition date of 07/17/17, viewable at the bottom of the first page, but USCIS says it will publish a new edition soon, as the current edition is set to expire on August 31, 2019).
- Follow the rules: the employee must complete the first part of the document upon hire; the employer must complete Part 2 within three days of hire.
- Do not require more or different documents than listed on the form. If you do so, this can open your company to charges of discrimination or document abuse.
- Treat all of your employees the same with respect to I-9 verifications, whether they are U.S. citizens or immigrants and regardless of appearance or language(s) spoken.
- Consider signing up for E-Verify.
- Conduct a “self-audit”: review I-9s for current employees and fix any mistakes. Check that hiring dates on the I-9 match payroll and other records. Re-verify any employee whose immigration status or visa has expired, or who has been rehired.
- Establish a standard operating procedure for I-9 verification and review.
- Provide training periodically for high-level executives and managers, to increase awareness and ensure knowledge redundancy.
- In the event of an audit, call your immigration attorney for advice on how best to proceed and whether to go to court.
Also, E-Verify recently reminded employers not to accept restricted Social Security cards as List C documents on the I-9 work authorization verification form. Form I-9 List C documents verify an employee’s authorization to work.
All of these steps will go a long way toward maximizing the chances that your company will pass any ICE I-9 audit.
- Latest I-9 form
- Fact sheet on the I-9 inspection process
- FY 2018 worksite enforcement investigations surge
- E-Verify, https://www.e-verify.gov/
- Webinar and white paper on how to “self-audit” and fix past I-9 mistakes, LawLogix, https://www.lawlogix.com/i-9-self-auditing-101-detecting-and-fixing-past-i-9-mistakes/; https://www.lawlogix.com/i-9-total-cost-of-ownership/
- Video on I-9 compliance for employers, Charles Kuck