Immigration Enforcement is Becoming More Aggressive in 2018: Are Employers Ready for I-9 Audits From ICE?

As the French saying goes, “plus ça change, plus c’est la même chose,” or “the more it changes, the more it’s the same thing.”  In the world of employment and immigration law, it is a truism that political winds have a dramatic effect.  One by-product of today’s shifting political scene is more intense enforcement from federal Immigration and Customs Enforcement, or ICE. An I-9 audit – inspection of the forms employers use to verify employees’ legal authorization to work in the United States – is a part of ICE’s jurisdiction.

These I-9  audits pose high risks to employers — fines for knowingly hiring or employing unauthorized workers can reach as much as $16,000 per violation, while substantive and uncorrected technical violations in record keeping hit $1,100 per violation.  Filling out the I-9 form is not particularly intuitive, and even the most well-meaning employer can make mistakes.

We’ve discussed I-9 forms in this space before.  Given the changing landscape it’s wise to have a brief refresher on I-9 audits.  Some key points for employers to remember:

• I-9 audits spring from follow various leads from the Department of Labor (DOL) and the public. Sometimes a former employee will file a complaint with ICE or the DOL.  ICE also targets specific industries that have a reputation or history of hiring unauthorized workers.
• The law provides certain defenses to an employer that establishes that it has complied in good faith with the employment verification obligations.
• ICE generally must provide the employer with at least three days’ notice of its intent to conduct an I-9 inspection. During the interim notice period you may review the I-9s and make technical corrections if needed.  If a technical correction is required, draw one line through the original answer and provide the correct information.  The correction should be initialed and dated.  Do not use white out and do not destroy an I-9 which has been incorrectly completed, or backdate a newly completed I-9.
• ICE can bypass the notice requirement in a lead-driven investigation if it obtains a search warrant.
• ICE agents generally do not have the authority to enter non-public areas of the building, or interview employees, without either the employer’s consent or possession of a valid search warrant or court order permitting such activities.
• At the completion of the investigative phase, ICE may issue a Notice of Intent to Fine (NIF). It typically will be based on violations for knowingly hiring or continuing to employ an unauthorized alien, or deficient records.
• Upon service of the NIF, an employer has 30 days to contest the NIF and to ask for a hearing. During this process employers may have an opportunity to negotiate with ICE and settle the matter.

It’s always a good idea for employers to conduct, prior to being subjected to an ICE audit, a “self-audit” to assess how they are doing in terms of I-9 compliance – forewarned is forearmed!

About the Author: Steve Winer

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