ICE Stepping Up I-9 Audits & What Employers Need to Know

By Allison Pearson

As immigration remains at the center of national attention, Immigration and Customs Enforcement (ICE) is not just stepping up its enforcement efforts at the border.

During fiscal year 2018, ICE conducted over 5200 I-9 audits. This was nearly a 400 percent increase over the number of I-9 audits in fiscal year 2017, and the largest number of I-9 audits ever. ICE has said it plans to conduct as many as 15,000 I-9 audits per year if it receives sufficient funding, and that one of its goals is to create a “reasonable expectation” among employers that they will be audited. Accordingly, all employers should be prepared.

What is an I-9?

Form 1-9 is used to verify the identity and employment authorization of each person hired for employment in the United States. Employers must complete the I-9 for each person they hire regardless of immigration status.

The I-9 requires the employee to attest that he or she is authorized to work in the United States and to present supporting documentation as listed on the I-9 form. The employer is charged with examining the employee’s documents and determining whether they reasonably appear to be genuine. The employer is also charged with maintaining documentation on each person it hires.

What is an I-9 Audit?

ICE Homeland Security Investigations (HSI) initiates I-9 audits via a Notice of Inspection. The Notice of Inspection informs business owners that ICE will audit their hiring records to determine whether they are in compliance with employment and immigration laws. After an employer receives a Notice of Inspection, the employer is required to produce their company’s I-9s for inspection within three business days.

What are the possible consequences of an I-9 Audit?

An employer’s failure to maintain the proper I-9 documentation can result in large civil fines and could also serve as the basis for criminal investigation if the employer is knowingly violating the law.

Employers may be subject to criminal prosecution, and any workers found during the audit who are unauthorized to remain in the United States are subject to administrative arrest and removal. In fiscal year 2017, ICE collected $97.6 million dollars in judicial forfeitures, fines, and restitution, and $7.8 million dollars in civil fines, as a result of I-9 audits. In September 2017 a single employer was ordered to pay $95 million dollars, including $80 million dollars in the form of a criminal forfeiture money judgment and $15 million dollars in civil fines, making it the largest payment ever levied in an immigration case.

How can you prepare?

Audit yourself before ICE does. The best way to prepare for an ICE audit is to review your own records for compliance. Our attorneys are able to assist in determining whether you have proper documentation for all employees, the best practices for maintaining records, and what to do if you encounter issues or lack proper documentation. ICE has made it clear that you should have a “reasonable expectation” of an I-9 audit. When you receive a Notice of Inspection, time is of the essence. Don’t be caught off guard.

The information is written by Attorney Allison C. Pearson. Allison is an associate in the Labor and Employment Practice Group. 

This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our Labor and Employment Attorneys.