Are You Confident Your I-9 Will Survive an Ice Audit?
According to the U.S. Department of Homeland Security’s website during a two-phase nationwide operation more than 5,200 businesses were served with I-9 audit notices around the country since January.
Notices of I-9 Audits Issued to Businesses Around the Country
During the first phase of the operation, Jan. 29 to March 30, Homeland Security served 2,540 Notices of Inspection. A Notice of Inspection informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing laws.
During the second phase of the operation, which ran only from July 16 to 20, Homeland Security served 2,738 Notices of Inspection.
I-9 Audits Result in Arrests
The operations also resulted in numerous arrests. During the first phase of the operation, Jan. 29 to March 30, Homeland Security made 61 arrests. But during the second phase, which began July 16 to 20, the Homeland Security made 32 arrests – half the number of arrests were made but this was only over a 5-day period. Clearly showing an increase in enforcement of I-9 practices.
Homeland Security’s worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law. Homeland Security’s worksite enforcement investigations often involve additional criminal activity, such as alien smuggling, human trafficking, money laundering, document fraud, worker exploitation and/or substandard wage and working conditions.
The I-9 Audit Process
According to the U.S. Department of Homeland Security’s website, after receiving a Notice of Inspection, employers are required to produce their company’s I-9s within three business days, after which ICE will conduct an inspection for compliance. If employers are not in compliance with the law, an I-9 inspection of their business will likely result in civil fines and could lay the groundwork for criminal prosecution if they are knowingly violating the law. All workers encountered during these investigations who are unauthorized to remain in the United States are subject to administrative arrest and removal from the country.
Employers See Significant Risk With I-9 Audit
Derek N. Benner, Acting Executive Associate Director for Homeland Security says, “Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records. All industries, regardless of size, location and type are expected to comply with the law.”
Failure to follow the law can result in criminal and civil penalties. In fiscal year 2017, businesses were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case.
What’s Hiding in Your I-9 Files?
Conduct a preventative internal audit of the I-9 files to see if there is a pattern of violations requiring remediation. Such an audit should be conducted by, or under the close supervision of, a lawyer familiar with I-9 rules.
How Do You Know if Your Company Is at Risk?
- I-9 Forms are not completed and I-9 documentation is reviewed without attention to detail
- Management is reluctant to question the authenticity of any I-9 documentation
- Management allows employees to present new documentation inconsistent with original I-9 documentation without further inquiry
- The company has received Social Security no-match letters and does not question employees regarding discrepancies or otherwise investigate
- Management does not address rumors or complaints that there are unauthorized employees or unauthorized contractors
- The pool of new hires comes mainly from the existing workforce including their friends and relatives
- Hiring decisions are not subject to review and/or made by those that may be sympathetic to those desperately seeking employment or willing to hire for personal gain
What Are the Fines for Incomplete or Incorrect I-9 Forms?
Monetary penalties for knowingly hiring and continuing to employ range from $375 to $16,000 per violation, with repeat offenders receiving penalties, at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of the violation, whether the violation involved unauthorized workers, and history of previous violations.
Here is an example:
- A company has 24 employees. 13 of the forms are incorrect as several are missing information; some have information written in the wrong places, some newer employees completed expired forms. The violation percentage is 54%, but this is the first violation. The penalty assigned to this company would be 13 x $935 = $12,155!
More examples can be found in Waltz, Palmer & Dawson’s blogs here.
What Can Employers Do to Prepare for an I-9 Audit?
- Establish a regular training program for human resource professionals regarding I-9 compliance rules.
- Establish a uniform company policy regarding I-9s. Should copies of documents be retained or not? What kinds of questions can be asked about national origin and citizenship status before the date of hire? Is their uniformity in terms of when the employment verification is commenced?
- Establish a re-verification reminder system to ensure I-9s are checked in a timely manner.
- Centralize the I-9 Form record keeping process.
- Establish a process for human resource professionals to check quickly with counsel when there are any problems in the verification process.
- Immigration Customs and Enforcement (ICE) and the Immigrant and Employee Rights Section (IER) have provided joint guidance to help employers perform internal audits. Audits allow employers to ensure Forms I-9 have been completed correctly, and to make corrections if errors are found.
The attorneys of Waltz, Palmer & Dawson, LLC frequently counsel business owners on these topics. If you would like to schedule an initial consultation at no charge to discuss questions you have about your business, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.
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