The Immigration and Customs Enforcement division (ICE) of the Department of Homeland Security (DHS) is responsible for curtailing the hiring of undocumented aliens. In the past few years, the agency has focused on “silent raids” targeting employers who employ these individuals.
A “silent raid” may come in the form of an ICE Notice of Inspection (NOI), providing employers a minimum of three days’ notice of an I-9 audit. In fiscal years 2010 and 2011, ICE issued over 4,000 NOI’s to various companies nationwide. Given ICE’s aggressive enforcement approach and the short turnaround time given to employers to comply with the NOI, employers should carefully review their I-9 documentation policies and procedures, and conduct annual internal audits to ensure compliance.
The ICE I-9 Audit
The purpose of an ICE I-9 audit is to identify employers’ “knowingly” employing anyone without proper employment eligibility verification, which can result in criminal and civil penalties. ICE may also cite employers for technical violations in their I-9 paperwork, even if the employer did not employ a single unauthorized worker.
A finding of document fraud can result in penalties of up to $3,200 per violation. Failure to properly complete, retain, and/or make available for inspection Form I-9 as required by law, can result in civil penalties of up to $1,100 per violation for the first offense. In some instances, individual liability can be assessed against upper management.
When ICE serves an employer with a NOI, the employer must allow ICE to inspect its Forms I-9. If the employer refuses to comply, ICE may issue a subpoena or warrant to compel compliance.
During the audit, ICE officials will review original Forms I-9 and attachments and compare them with payroll records and lists of employees to determine if there are any discrepancies or paperwork errors. ICE, in its discretion, may review all forms, or a random sampling. Each violation will result in civil penalties. ICE may also request additional information, including the Certificate of Incorporation, general information about the business, whether the employer participates in E-Verify, payroll records, and quarterly tax statements.
Ensure Form I-9 Compliance
Before ICE comes knocking at the door, employers should ensure compliance with I-9 Forms requirements. If possible, an employer should assign one employee (or a very small group) the responsibility of maintaining the I-9 records and conducting a final review of them before they are filed. That employee should receive training on Form I-9 compliance.
The Form I-9 is divided into three separate sections, each of which relates to specific compliance requirements. When ICE audits an employer’s files, the purpose is to ensure the I-9s are correctly completed for each current employee hired after November 6, 1986, and former employees going back three years.
For those employers who maintain Form I-9 in electronic format, one employee should be responsible for retaining an audit trail of the history of each Form I-9. Failure to do so can result in ICE fines for technology-related deficiencies.
The designated employee should also verify that Form I-9s are kept in a separate file from the employee’s regular personnel file. For authorized alien employees, an employer should establish a tickler system to alert the employer when re-verification must take place. The process of re-verification should be uniformly applied to all employees.
Employers should conduct their own internal audit on an annual basis to verify I-9 compliance. Preparation is everything when it comes to I-9 compliance.
As part of the audit, employers should prepare a list of current employees hired since November 6, 1986, and employees who separated in the prior three years and ensure there is a Form I-9 for each individual. For large companies, the annual audit may consist of a random sample audit rather than confirming I-9 compliance for each current and former employee.
The employer should review each Form I-9 for proper completion and supporting documents. Any incorrect information should immediately be noted or a new I-9 issued, with the old I-9 attached to it. The employer should then prepare a log with I-9 errors and state what was done to correct each error.
An employer may also wish to retain the services of a third-party experienced in I-9 audits to conduct the internal audit on its behalf.
Employers should be careful to avoid violating anti-discrimination laws. In addition to remedies under federal and state anti-discrimination laws, ICE will also assess civil penalties of up to $3,200 per individual discriminated against in the context of Form I-9 compliance. For example, ICE may find that an employer discriminated against an employee based on citizenship status or national origin if the employer makes photocopies of verifying documents for some employees but not others. As a result, if an employer makes photocopies of verifying documents, it should make copies across the board, and not selectively.
Similarly, employers’ should conduct internal audits without discrimination äóñ either based on all employees or a completely random selection, and should not be targeted at certain individuals.
To avoid liability for I-9 violations and stay off the ICE radar, employers should take steps to appropriately train employees responsible for I-9 compliance and conduct at least annual internal audits.