I‑9 audits continue to be a critical component in the worksite enforcement strategy of U.S. Immigration and Customs Enforcement (ICE). In early June 2012, ICE issued 500 Notices of Inspection (NOI) for I‑9s and related supporting documents as I‑9 audits continue to surge along with I‑9 fines against employers. In 2011, ICE issued more than 330 final orders against employers for worksite violations totaling more than $9 million in fines, compared to only $675,000 in 2008. Employers should expect more I‑9 surges as ICE has stated that it intends to issue at least 3,000 NOIs in 2012. While most I‑9 investigations are initiated based on a whistleblower or individual complaint, ICE has revealed that it is focusing on critical infrastructure industries. It is clear that ICE is also focusing on industries that rely on a workforce that is traditionally made up of vulnerable workers, including the construction industry.
Under the Immigration Reform and Control Act of 1986 (IRCA), employers must establish the identity and employment eligibility of employees hired after November 6, 1986. It is critical that employers comply with IRCA and not be on the defensive when they receive a NOI. While employers can be exposed to criminal and/or civil penalties for noncompliance under IRCA, it appears that the current focus is on civil fines for I‑9 violations. These civil fines can range from $275 to $2,200 per unauthorized worker for a first offense and $110 to $1,100 per I‑9 paperwork error violation.
Practical Tips for Surviving an I‑9 Audit
I‑9 audits have resulted in exorbitant fines against employers for not just failing to maintain I‑9s but also for paperwork errors on completed I‑9s. Based on extensive experience representing employers in recent I‑9 audits before ICE, the following I‑9 practices have been found to significantly minimize an employer’s exposure to I‑9 fines:
- Conduct regularly scheduled in-house I‑9 audits.
Employer-initiated I‑9 audits help ensure that I‑9s are stored, prepared, and completed accurately and that errors can be corrected in a timely fashion. At minimum, companies should have a third party review their I‑9s at least once to ensure that the I‑9s are being completed correctly and to obtain appropriate I‑9 training where needed. Periodic I‑9 audits can also serve as training opportunities for company personnel. Most importantly, employers can make corrections to I‑9 errors that are discovered during the internal audit. Unless it is a timeliness error, ICE should fine only those errors that exist after the NOI is issued.
- Implement a tickler system for I-9 reverification of employee’s employment eligibility before it expires
ICE considers it an egregious violation when employers fail to reverify the employment eligibility of an employee whose employment authorization has expired. Employers should establish a tickler system to obtain documentation of the continued employment eligibility of the employee before the work authorization expires. One exception is when an employee presents an I‑551 lawful permanent resident card as the I‑551 does not need to be reverified even though it has an expiration date.
- Conduct I‑9 training for all company representatives who are part of the recruitment, orientation, and hiring processes for the company.
Employers must provide I‑9 training to employees who are in charge of the I‑9 process or are acting as the company’s representative in completing the I‑9. ICE considers efforts by employers to provide I‑9 training to its representatives as evidence of good faith by the employer to comply with IRCA.
- Make photocopies of supporting documents presented as part of the I‑9 process.
There are differing opinions as to whether employers should maintain photocopies of the supporting documentation presented during the I‑9 process since IRCA and related regulations do not require employers to maintain photocopies presented for the I‑9 process (employers who are registered users of E‑Verify are legally required to make photocopies of certain I‑9 documentation as part of the E‑Verify process). The case against making copies of I‑9 supporting documents focuses on the concern that the photocopies can be used as evidence against employers if it is later determined that the I‑9 documents are fraudulent. Employers are not forensic experts and are not required to attest to the authenticity of I‑9 documents. The employer is only required to attest that it has examined the documents presented by the employee and that the documents “appear to be genuine and relate to” the employee presenting the documents for I‑9 verification.
Proponents of making photocopies base their argument on the fact that employers can use the photocopies to make corrections to I‑9 errors during the internal audit. In addition, employers can avoid substantial paperwork fines in an ICE I‑9 audit. During an I‑9 audit, ICE must provide employers a ten-day period to correct I‑9 technical or procedural paperwork violations to avoid potential fines. Employers who submit photocopies of supporting documents with the I‑9s as part of the NOI response have a “second chance” to correct their I‑9s using the photocopies in order to avoid potential fines for certain violations. Based on past I‑9 audits and I‑9 negotiations with ICE, it would be prudent for employers to make photocopies of supporting documents presented for the I‑9 to help minimize any potential fines.
Any business that has not been complying adequately with the I‑9 verification procedures should take immediate steps to ensure full compliance. It is never too late to comply, right up to the time the employer receives the NOI.