Increased ICE Form I-9 Audits – Is Your Company Prepared?

  • Posted by: Emma Berdanier |
  • 8/7/19 |
  • 12:00 AM
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Increased ICE Form I-9 Audits – Is Your Company Prepared?

In our current political climate, more and more power has been given to U.S. Immigration Customs Enforcement (ICE). ICE agents have been ordered to serve more Notices of Inspection (NOI) to businesses across the country, and have already served thousands this year alone.

An NOI initiates a government administrative inspection of a company’s I-9 Forms to determine whether the business is complying with the current laws regarding the processing and maintaining of these forms.

There are steep penalties for infractions found in these audits, which include harsh fines and even criminal prosecution. Employers may also be subject to debarment by ICE, meaning they can’t participate in federal contracts or receive other government benefits. Below is a list of the common fines for Form I-9 violations:

  • $220 - $2,200 for each technical violation found, i.e. paperwork errors
  • $3,548 - $19,242 for each instance of knowingly hiring and continuing to employ unauthorized workers
  • $97.6 million in judicial forfeitures, fines and restitution were paid by companies in FY17
  • $7.8 million in civil fines were paid by companies in FY17

Preparing for an NOI:


When an employer receives an NOI they have just 3 days to send over the requested paperwork and files to ICE to comply with the order. With only 3 days to prepare, it is essential that companies are always prepared for an NOI to be served. Some steps to take to be proactive would be to:

  • Perform an Internal Assessment on your I-9 Forms and quickly remedy any issues including, but not limited to, simple paperwork violations, missing I-9s for hired employees, expired work authorizations, and fraudulent documents.
  • Review your company’s Policies and Procedures with regards to your I-9 Forms. Ensure that you look into your pre-hire applications, I-9 retention schedules, photocopying policies, Social Security mismatch issues, and reverifying that all of your policies and practices comply with current laws.
  • Ensure there is an I-9 Form on file for every active employee at your company.
  • Ensure all Section 3 reverifications are completed where necessary (i.e. where an employee’s work authorization has expired).
  • Maintain copies of identity and work eligibility documents for all active employees.

Dealing with ICE at Your Door:


The number one thing to remember when dealing with ICE if they come knocking on your office door is to remember your rights and to assert them. The key rights to maintain during an ICE visit are:

  • ICE agents cannot enter past the public entryway of your office unless someone at your company gives them express permission to do so or they have a warrant detailing where in your premises they may go.
  • ICE agents can only act on a valid warrant or subpoena. Ask for this from them and verify it, either by closely reading it or by showing it to a lawyer. Be sure to verify the document before allowing them any of the privileges the document provides for them.
  • You have 3 days to hand over the requested documents in the event of an NOI. Do not offer to do this earlier. Use all the time you’re given to ensure you deliver these documents properly.

Another key thing to do during an ICE visit is to contact an attorney immediately, so that they can assist you throughout the process. You can wait to speak with the ICE agents until your attorney arrives, ensuring that you have someone with knowledge and experience guiding your team through the process. With the limited time given once you receive an NOI, identifying an immigration attorney ahead of time is a smart tactic.

Summary:


Right now, any company, regardless of size, is susceptible to an ICE audit. You should always be prepared for this to happen and have a plan in place of what to do should this occur. This preparation should include having an immigration attorney on retainer, who can assist your company should this occur.

FYI: 

Although the current Form I-9 expired on the 31st of August this year, you are still to continue using this version of the form as the federal government has yet to release a new form. 

Sources:

  • Bahal, Alka. “Employers Beware: ICE Is Ramping Up I-9 Audits to Record Levels.” Immigration View, 25 July 2018. https://immigrationview.foxrothschild.com/employment-verification-compliance-including-i-9s-e-verify-and-enforcement/employers-beware-ice-is-ramping-up-i-9-audits-to-record-levels/. Accessed 07 August 2019.
  • Lurie, Dawn. “ICE Chills the Summer with Thousands of Audit Notices Issued to Businesses Nationwide.” LEXOLOGY, 22 July 2019, https://www.lexology.com/library/detail.aspx?g=fc1b87ca-9c18-4697-814a-bc3a14a2134b&utm_source=. Accessed 25 July 2019.
  • Lurie, Dawn; Rodriguez, Leon. “Quick Guidance: What To Do In The Event of a Visit By The DHS-ICE Agents.” SEYFARTH SHAW, https://www.seyfarth.com/uploads/siteFiles/publications/MA033017LE.pdf. Accessed 25 July 2019.
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