In light of the recent I-9 audit blitz conducted by U.S. Immigration and Customs Enforcement (ICE) on July 1, a review of what to expect during an I-9 audit might be instructive.

  • Who gets audited? Any business can be the subject of an I-9 audit. ICE indicated that the targets of its July 1 blitz were selected for inspection as a result of leads and information obtained through other investigative means. Most analysts indicate that labor intensive businesses such as construction companies, landscapers, hotels and restaurants, manufacturing, and agriculture/food processing are likely targets.
  • How is an audit started? Employers will receive an NOI subpoena requesting certain documents and possibly a personal appearance by a company representative. ICE must provide employers with at least three days to provide the documentation (unless a warrant or court order is provided, typically as a part of a criminal investigation, that requires document production in less time).
  • What to do if you receive an NOI? Employers need to immediately begin assembling the documentation. Employers should conduct a quick self-audit to make any simple corrections to I-9 forms (or to complete I-9s if none exist) and to assess potential liability. We recommend contacting immigration/employment counsel immediately for assistance.
  • What happens next? ICE may conduct an employer interview. ICE will review the documentation (this is typically performed by an ICE Forensic Auditor) and report back to the employer in a matter of weeks or perhaps months. Several items might be provided to the employer at that time: 1) a list of “suspect documents” requiring the employer to complete new I-9s or terminate the relevant employees; 2) a list of unauthorized aliens who need to be terminated; and 3) a “Notice of Intent to Fine” listing I-9 documentation failures and proposed fines. In certain cases where more egregious violations are uncovered, the U.S. Attorney’s Office may become involved to initiate criminal proceedings (e.g., for harboring illegal aliens, assisting with securing fraudulent documents, or for a variety of other violations.)
  • What is the potential liability? Aside from the more problematic cases where criminal sanctions are sought or more egregious violations are alleged, most audits are likely to result in employer fines of $110 to $1,100 per I-9 for improper completion of I-9 forms (e.g., failure to timely complete Sections 1 or 2, failure of the employer to sign Section 2, or employer acceptance of improper documents). Depending on the size of your organization, these fines can be substantial. Although there is a possibility that ICE will negotiate with an employer and agree to decrease the fines, anecdotal information suggests ICE will not substantially reduce fines going forward.

Employers are encouraged to complete a self-audit of their I-9s and to review I-9 completion procedures to ensure maximum compliance and limit potential liability.