The number of I-9 audits is on the rise, but for many employers this is still unfamiliar territory. In this post, we will explore what happens next after Immigration & Customs Enforcement (ICE) has selected your company for an audit.
The Immigration Reform and Control Act requires employers to verify the work authorization status of their employees by completing the Employment Eligibility Verification Form (Form I-9). If your company is selected for an audit, ICE will serve a Notice of Inspection (NOI), which typically requests Forms I-9 (of current employees and former employees whose I-9’s fall within the required retention period), together with other supporting documentation such as payroll records or employee lists with hire/termination dates. Employers are given three business days to produce all requested items but may ask for an extension if needed.
Once ICE receives all Forms I-9 and supporting documentation, they review each I-9 for technical and substantive violations. ICE gives employers ten business days to correct any technical violations before assessing monetary fines. Substantive violations, however, cannot be remedied. Some examples of substantive violations include: 1) missing Form I-9 for an employee; 2) missing employee’s signature in Section 1, or signed late; 3) Section 1 completed late; 4) employee fails to attest to his/her immigration status; 5) if applicable, no A number (Alien number) provided in any of the documents or sections; 6) missing employer’s signature in Section 2, or signed late; and 7) untimely reverification of the employee’s status. Because these violations cannot be corrected once they have been made, it is extremely important for employers to audit their Forms I-9, gauge how many and what types of substantive violations are being committed, and come up with measures to avoid making these errors on future Forms I-9. Also keep in mind that, in addition to the above technical and substantive violations, employers who are deemed to have knowingly hired or continued to employ workers without proper documentation can face criminal charges and/or debarment, which will prevent the employer from being a federal contractor or receiving other government benefits.
Depending on the results of the audit, ICE will generally provide any of the following notices: Notice of Inspection Results; Notice of Suspect Documents; Notice of Discrepancies, Notice of Technical or Procedural Failures; Warning Notice; or Notice of Intent to Fine (NIF). When ICE issues a monetary fine, it considers the following five factors: 1) the size of the company; 2) the employer’s good faith effort to comply; 3) seriousness of the violation; 4) whether the violation involved unauthorized workers; and 5) history of previous violations. Upon receipt of a NIF specifying the I-9 violations, employers have an opportunity to negotiate a settlement with ICE. Alternatively, they can request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO) to contest the violations and fines imposed by ICE.
Depending on the outcome of the audit, the I-9 audit process can take 1-2 years to complete. Hopefully your business will come out of this ordeal with just minimal monetary fines that the company can afford. But reducing the impact of an audit largely depends on how much effort is put into reshaping the I-9 practice prior to an audit by ICE. It is in the interest of every business to take a look at their I-9 procedure and identify the areas that need to be changed– and to do so sooner than later.