In July, the US Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations announced that I-9 audit notices were served to more than 5,200 businesses in the country since the start of 2018. The notices inform business owners that ICE is going to audit their hiring records to determine their compliance with existing law.
So if you receive a notice, what do you need to do?
- Understand the law. Under federal law, employers are required to verify the identity and employment eligibility of all individuals they hire, and document the information on Form I-9. Employers must maintain original Forms I-9 for all current employees and keep the forms of former employees for at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.
- Prepare for Inspection. Upon receipt of a notice of inspection, employers have three business days to produce their company’s I-9s for ICE to review during an inspection. Supporting documentation may also be required, such as a copy of the payroll records and list of current employees. In certain situations, typically as part of a criminal investigation, documentation can be compelled earlier by warrant or court order.
- Review Results. Once complete, ICE will notify the audited party of the inspection results. You may receive a letter saying you’re in compliance or one of several other notices, such as a notice of suspect documents, notice of discrepancies, or notice of technical or procedural failures.
- Perform Required Follow Up. If technical or procedural violations are found, then employers have ten business days to make corrections. If ICE is unable to determine an employee’s work eligibility or determines that an employee is unauthorized to work, the employer will have an opportunity to present additional information to establish their employment eligibility.
- Address Penalties. Employers with substantive and uncorrected technical violations may face monetary fines and those who knowingly hired or continued to employ unauthorized workers may be fined or criminally prosecuted. ICE considers five factors when determining penalties: employer size, gravity of the violation, involvement of unauthorized workers, prior violations and sincerity of the employer’s compliance efforts. Once you receive a notice of intent to fine, you can opt to negotiate a settlement with ICE or request a hearing. If no action is taken, you’ll receive a final order requiring you to pay.
To help reduce your potential liability from an I-9 audit, be sure to review and update your policies for compliance, train personnel responsible for I-9 completion and perform regular self-audits.