Brace yourselves, winter is coming: Tips to survive an ICE I-9 compliance audit

Originally posted October 15, 2013 by Holly Jones on http://hr.blr.com

Despite months of legislative inactivity on a stalled federal immigration reform bill, federal immigration enforcement activities have not slowed. Just before Labor Day, 1,000 businesses across the U.S. were notified by U.S. Immigration and Customs Enforcement (ICE) that they would need to prepare documents for I-9 compliance and worksite enforcement audits. This is the largest round of these inspections, known as "silent raids," since 2009.

The newest round of audits hit restaurants, food processing, high-tech manufacturing, agriculture, and other industries, but no industry is insulated from the possibility of I-9 audit. In the last 4 years, the government has audited at least 10,000 employers and imposed more than $100 million in administrative and criminal fines, and this enforcement push is unlikely to slow.

So, what can you do to ensure that you are prepared for a visit from ICE?

What to expect during an ICE audit

The first step of an administrative inspection is receipt of a "Notice of Inspection" (NOI), which requires the employer to produce all Forms I-9 within 3 business days. In some cases, supporting documentation such as payroll records, employee lists, and licenses may be required.

After thorough examination of these documents, ICE will issue any of several notices, depending on its findings. The "Notice of Suspect Documents" and "Notice of Discrepancies" are issued when employees are either determined to be unauthorized to work or when a determination cannot be made. Employers will be given the opportunity to present additional documentation to establish employment eligibility—otherwise, employers will be advised to terminate the work relationship.

If errors in the Forms I-9 are found, a "Notice of Technical or Procedural Failures" will be issued, and employers will have 10 business days to correct these errors (otherwise they will become substantive violations.) When the review is complete, a Notice of Intent to Fine will be issued, upon which the employer may negotiate a settlement or request an administrative hearing within 30 days. If no further action is taken, a Final Order will be issued and the employer will be liable for all penalties assessed.

Fines for knowingly hiring or continuing to employ unauthorized workers can reach as much as $16,000 per violation, while substantive and uncorrected technical violations can be as much as $1,100 per violation. What’s more, certain "enhancements" can be added to fines based on business size, history of violation, and seriousness of the violation.

It’s not all about immigration

It is important to note that, while civil and criminal fines for employing undocumented workers can be quite extensive, the possibility of a hefty ICE fine is not limited to those who hire unauthorized labor. The fines for technical I-9 violations can also add up quickly. Further, though the new revision of Form I-9, as released in March, 2013, includes anextensive instruction handbook to walk employers through the documentation process, there is significant room for error on this seemingly innocuous form, whether in storage methods, documents accepted, or even proper correction of previous errors.

So, what can employers do to avoid I-9 violations and the subsequent fines? Find out now in part 2 of this article.

Holly K. Jones, J.D., is a Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature's Office of Legal Services.

She graduated magna cum laude and Phi Beta Kappa with a B.A. in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.