The Immigration and Nationality Act (“INA”) mandates that all employers have to complete Form I-9 for employees 
employed after November 6, 1986. Immigration and Customs Enforcement (“ICE”) makes random audits to an employer’s Form I-9s by providing the employer with a Notice of Inspection (“NOI”). ICE engages in random audits of companies of all sizes and in all trades. For every Form I-9 that has an inaccuracy, ICE will levy a fine of up to $1,100. Employers commonly audited by ICE have a substantial number of errors which can very rapidly intensify into tens or hundreds of thousands of dollars in fines.
Note: fines can be higher if ICE thinks the employer with full knowledge hired an employee who was not legally permitted to work in the United States.
The INA also includes necessities which direct employers to not commit discrimination in the Form I-9 procedure and computes precise forms of discrimination that are banned. This portion of the I-9 law repeatedly goes unnoticed to employers. The Office of Special Counsel (“OSC”) is a division of the U.S. Department of Justice that is responsible for examining allegations of discrimination in the Form I-9 procedure. In the last several years, the number of OSC investigations has gone-up profoundly. An OSC Investigation can cause civil penalties, back pay with interest to employees not employed because of unfair I-9 practices, and mandatory training and monitoring by the OSC.
Employers normally have no prior warning that they will be subject to an NOI or an OSC Investigation. As per the law, documents receptive to an NOI must be delivered to ICE by the employer within 72 hours. OSC Investigations also change very rapidly and incline to appeal wide-ranging documentation and corporate information as well as interviews of management and employees.
It is highly recommended that you consider an independent I-9 audit under the following conditions:
- There has been a change in the HR position(s) charged with the responsibility of handling and processing I-9 Forms
- None of the employees responsible with the I-9 process have been officially trained
- You have prior knowledge of I-9 document violations, errors and unintentional mistakes
- You have in recent past undergone a corporate restructuring, merger or acquisition
- You are aware of an on-boarding procedure that is complicated, such as multiple jobsite positions where the I-9 procedure happens
- When you haven’t documented your I-9 Form policies and procedures in a policy statement or procedures manual
- A large volume of foreign worker I-9 forms
- If no calendar system exist for re-verification or terminated employee retention
- No centralized I-9 recordkeeping process exits
- Getting copies of documents presented during the I-9 process for specific employees
- You take part in government contracts and re requested to perform an I-9 audit
- You have not performed a random or full audit within the last year by either an internal individual who is familiar with I-9 compliance rules but does not deal with I-9s on a regular basis, or by a reputable independent I-9 auditor.
- You’re unaware that a new I-9 form was released and do not have a process in place for staying current with regulations and procedures
For more on how to avoid fines in an I-9 Audit by ICE, join expert speaker Patricia A. Bollman in a Live Webinar on Thu, October 27, 2016. During the webinar, Patricia will provide practical strategies to be in the best position to defend an NOI or OSC investigation.
