The Audits. As reported by the Wall Street Journal and other major news media, ICE served Notices of Inspections for audits of I-9 records on 1000 employers yesterday. This is part of an ongoing administration effort to require employers to comply with the I-9 basic requirements to obtain work authorization and identity documents from their employees. An ICE spokeswoman emphasized that "the inspections will touch on employers of all sizes and in every state of the nation with an emphasis on businesses related to critical infrastructure and key resources." However, the list of industries furnished by ICE indicates that nearly every industry sector-- from agriculture to shipping-- has made the list of 1,000 audit targets.
E-Verify and State Enforcement. Your compliance may not stop with the I-9 Forms. Employers may also be required to enroll in the electronic E-Verify program if they are federal contractors or subcontractors or do business in one of the states that mandate E-Verify. The U.S. Supreme Court just upheld Arizona's E-Verify law on May 26th, and last week Alabama joined the list of states passing copycat legislation. See map as of May 26th below.
Click here for map
The Risks. In short, for employers this is a confusing and costly environment in which to do business, as federal and state governments seek to punish employers that hire unauthorized workers. In addition, many employers are being fined for paperwork errors on the I-9 forms even if their workers were born in the United States. Paperwork fines alone can run $110 to $1100 for each I-9. Substantive violations for employing unauthorized aliens are subject to fines of $375 to $3200 for each alien (first offense). Total administrative fines against employers have hit a record $7.2 million so far this fiscal year, and there have been more than 150 criminal prosecutions against employers. American Apparel had to fire or lost over 1500 production workers after one audit; and Abercrombie & Fitch paid fines of over $1 million for I-9 violations.
What to do. If you receive a Notice of Inspection or subpoena, you should ensure that all I-9 records are preserved intact until a confidential audit can be conducted to determine the scope of any violations and whether the forms can be corrected. If you have not received a Notice, now is the time to conduct a sample audit of your I-9 records, decide whether you will need to terminate or suspend any current employees, and determine what your rights and responsibilities are under federal and state statutes.