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I-9 Audits: An Employer’s Best Defense is a Good Offense

In 2018, the Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security (DHS) nearly quadrupled the number of I-9 audits and investigations it conducted in 2017.  It should come as no surprise to employers that the government will continue to heavily focus on immigration issues, including enforcement activities aimed towards businesses such as I-9 audits and worksite investigations.  Hence, it is now vital that employers are vigilant when complying with all records and verification requirements for new employees through I-9 forms and be prepared to handle an I-9 audit or worksite investigation.

What many employers fail to understand is the importance of I-9 compliance.  ICE’s Homeland Security Investigations (HSI) unit has the ability to audit any company from a tip from the public, another business, a disgruntled employee, or from other government agencies, or it may randomly audit a company.  This should be of great concern to employers due to the broad range of penalties ICE may impose on employers.  The penalties can range from civil penalties, including paperwork violations ranging from $220 to $2,191 per form and unauthorized worker violations ranging from $548 to $19,242 per unauthorized worker, to criminal penalties.

How can employers prepare ahead of time for an I-9 audit and worksite investigation?

First, employers should develop an action plan ahead of time.  Employers should educate all employees on what they should do in case ICE chooses to audit the company through an ICE Notice of Inspection (NOI) or conduct an unannounced worksite investigation.  This means informing all managers that employers are not required to produce I-9 forms immediately without an administrative subpoena or warrant.  It is also a good idea to assign a point person who is familiar with ICE so, if an emergency comes up, employees know to reach out to that point person.

Employers should also develop a policy and plan to properly catalog and maintain I-9 forms of both current employees and former employees.  The I-9 forms of former employees should be kept separate from those of current employees, and I-9 forms should be maintained separately from general employee personnel files.

Employers must also review all I-9 forms to check that they are filled out correctly, since errors on I-9 forms can lead to violations, which can add up very quickly.  It is a good idea for employers to conduct routine formalized self-audits and to document each internal audit.  Below, we provide a breakdown of the I-9 form and point out where many common violations occur.

In section 1, the employee must fill out all required items such as address, social security number, phone number and email.  Where appropriate, the employee can simply write “none” or “N/A”.  The employee must also sign and date section 1 of the I-9 form.  If the date it is signed is later than the first day of pay, it is a violation.

Section 2, which confirms the identity and work authorization status of an employee, must be completed by the employer within three (3) days from the employee’s first day of pay.  This section has three columns – A, B, and C.  Employers must fill out either columns A or B and complete column C.  Each column lists the acceptable authorization documents an employee is required to bring to the employer to complete this section accurately.  Employees must physically bring the documents to the employer within three (3) days of starting work for pay.  If an employer fails to complete the I-9 form by the employee’s third day, it is a violation.  By law, employers must terminate the employee if they fail to provide the required documentation to complete this section.  Failure to terminate employment will lead to a violation and fine.  In addition, if there are inconsistencies between sections 1 and 2 of the form, employers should investigate the issue since it can lead to violations that they are responsible for.

Employers should only fill out section 3 of the form when an employee’s employment authorization document has expired.  For example, it is up to the employer to document whether an employee’s work visa is expiring and section 3 should be completed to document the extension of the work authorization.  It is the employer’s responsibility to track the expiration of an employee’s work authorization forms, or it could likely lead to additional violations.

Third, employers must prepare their employees in the event that ICE does choose to conduct an unannounced worksite investigation.  It is important that employers are complaint with the investigation while protecting their business.  Employers do not want to harm their business by answering questions or signing paperwork, so they should consult with an expert before saying or signing anything.

As you can imagine, ICE might show up at your business and obtain access to your I-9 forms through the consent of fearful employees.  This is why employers must train their staff to understand that generally the government must provide three (3) days’ notice prior to an inspection through an NOI.  Employees should also know that they are only required to open the doors to ICE agents during an audit or raid if ICE has a written warrant that is signed by a judge.  An administrative warrant is not sufficient.  If ICE produces a warrant signed by a judge and requests I-9s, employers will have up to seventy two (72) hours to turn the forms in.  If there is an emergency or a business necessity, employers may be permitted to request a longer period of time to comply with the warrant.

What should employers expect if violations are found?

If after an audit, inspection or raid, technical or procedural violations are found, employers are given ten (10) days to correct them.  If those violations are not corrected within the ten (10) day limit, substantive violations, such as failing to produce an I-9 form, and technical violations, are likely to be subject to fines ranging from $220 to $2,191 per violation.  Additionally, any violations tied to an employer who knowingly hired and continued to employ individuals who are unauthorized to work may be fined from $548 to $19,242 per violation.  In determining the appropriate penalty to award an employer, ICE considers the following five (5) factors: (1) the size of the business, (2) the employer’s good faith effort to comply with the audit or investigation, (3) the seriousness of the violation, (4) whether the violation involved unauthorized workers, and (5) the employer’s previous history of violations.

Since it is likely that the government will continue to scrutinize I-9s in the future, employers must be proactive and strive to maintain a culture of compliance in their workplace.


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