As we've all seen in the media, immigration enforcement activities are up, and the U.S. Immigration and Customs Enforcement agency (ICE) is not focusing on the border.
In 2018, ICE reported it conducted over 5,200 Form I-9 audits with employers. This was nearly a 400 percent increase over the number of 2017 audits and the largest increase and number ever. Criminal and worksite arrests were also way up. Immigration law violations are one of the few employment law areas that permit criminal prosecution.
With immigration enforcement at the forefront this summer, our clients continue to suffer through aggressive, time consuming, and expensive Form I-9 audits.
ICE plans to conduct as many as 15,000 Form I-9 audits per year if it receives enough funding, and ICE has reported that one of its goals is to create a "reasonable expectation" among employers that they will be audited. All employers must be prepared.
Under federal law, employers must verify the identity and work eligibility of all individuals hired by completing a Form I-9 within 3 days of starting work. While Form I-9s appear simple, many employers fail to pay attention to the details and fail to properly complete, document, and certify that they have accurately verified the identity and work authorization of each hire, e.g., the employee not completing Section 1 by the first date of employment or using the incorrect edition of the form. We find a higher error rate when hiring is done in separate locations where there are no trained personnel to supervise the completion of the I-9s.
ICE inspections are one of the most powerful tools the federal government uses to ensure that businesses are complying with U.S. employment laws. The process to respond to an audit request moves quickly:
- ICE initiates I-9 audits via a Notice of Inspection (NOI). NOIs can be triggered randomly or due to whistleblower or employee complaints.
- After receiving the NOIs, employers are required to produce their company's I-9s within 3 business days, after which ICE will conduct an inspection for compliance.
If employers are not in compliance, an I-9 inspection of their business will likely result in civil fines and could lay the groundwork for criminal prosecution if the employer is knowingly violating the law.
Form I-9 paperwork violations are not just an administrative headache, they are expensive. In fiscal year 2018, businesses were ordered to pay $10.2 million in judicial forfeitures, fines and restitution, and another $10.2 million in civil penalties.
What does this flurry of activity mean for employers? Employers should take the following steps now:
- Conduct a self-audit of your I-9s and if mistakes are identified take the appropriate steps to correct them.
- Be sure you know the right way to fix errors that are identified.
- Review and, where necessary, retrain employees who are responsible for reviewing the documents presented by the new hire and certifying the accuracy of your I-9.
Audit yourself before ICE does. Don't worry - we are here to help!
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