The focus of the U.S. Immigration and Customs Enforcement (ICE) has been on creating a ‘culture of compliance’ by relying heavily on I-9 inspections to search and fine employers who fail to follow the immigration laws concerning employment eligibility verification. The employers, according to immigration law (8 U.S.C. § 1324a (b)) are required to verify the employment eligibility of every employee by filling and maintaining Form I-9.
Any company can be audited on a random basis by ICE’s Homeland Security Investigations (HSI) unit, it may also follow a lead from disgruntled employees at workplace, public, other business agencies, or even through tips from various government agencies. There has been a tremendous rise in the number of businesses subjected to I-9 audits from 2007 to present. In 2007, 250 businesses were subjected to I-9 audits and in 2012 more than 3,000 businesses were audited. HSI has continued to serve Notices of Intent to Fine (NOFs) at an alarming rate for Form I-9 related violations.
Therefore, you need to be prepared for any such audit by conducting your own self-audit; this will help in creating and maintaining a compliance culture in your business. Hire any Counsel with knowledge of conducting an internal I-9 audit and also someone who can do self-examination of your systems, present practices of handling I-9s and operating procedures.
What to expect – I-9 Audit:
- The employer will come to learn about the inspection through a Notice of Inspection (NOI) and subpoena requiring to produce I-9s and business documentation supporting it (business licenses, Articles of Incorporation, list of employees and payroll records)
- Typically, the employer would be provided 72 hours (three days) to submit the required documents in the audit notice
- A duration of 10 days will be provided to the Employer to correct any procedural or technical violations that are found
- In case of violations such as not being able to produce I-9s, as well as not correcting technical violations within the given 10 day period, the employer would be subject to a fine ranging from $110 to $1,000 per violation
- The fines for violations tied to knowingly hiring and employing or unlawful discrimination of employment authorized individuals will range from $375 t0 $16,000 per violation
- The five factors considered by ICE in determining penalties are – good faith effort to comply, seriousness of violation, the size of the business, previous violations history and whether unauthorized workers were involved in the violation
The movement towards increased scrutiny of I-9s will likely continue to rise in the future. There are numerous factors which may motivate HSI to target a business for an I-9 audit. The businesses must not assume that only those with a huge foreign national workforce need to be concerned about maintaining a culture of compliance within their workplace.
To get detailed insight, join this live Webinar by Patricia A. Bollman, where she will discuss the mechanics of an I-9 audit by ICE and an OSC Investigation. It will also discuss practices employers should have in place in order to be in the best position to defend an NOI or OSC Investigation. Finally, this webinar will discuss tips for defending your company in the event it finds itself the subject of an I-9 investigation by either one or both of these agencies.