Client Alert: Companies Should Prepare for an Increase in I-9 Audits

In President Trump’s recent Executive Orders, he directed executive agencies to prioritize the enforcement of immigration laws and proposed an increase in the budget for the hiring of additional immigration officers. Such enforcement efforts will likely include a surge in I-9 audit compliance.

All employers have an obligation to verify the identity and employment eligibility of all newly-hired employees through the completion of the Employment Eligibility and Verification Form I-9. This verification process must take place within 3 days of the start of employment. The Form I-9 records the relevant data from the documents that the employer inspected to confirm the employee’s authorization to work in the United States. It is important that the employer clearly identify the reviewed documents and their identification numbers. It is not necessary to retain copies of the documents.

The U.S. Department of Labor and the Department of Homeland Security through its U.S. Immigration and Customs Enforcement Bureau (ICE) are the government agencies with authority to audit I-9 compliance. Prior to conducting an I-9 audit, the agency normally sends a Notice of Inspection for production of I-9s; then, businesses will have 3 business days to provide the requested documents for inspection. The Notice of Inspection may also list other business records for inspection such as payroll records, a list of employees, Articles of Incorporation and business licenses.

If technical or procedural violations are found, the employer is given 10 business days to correct the violation. Companies can receive monetary fines for substantive and uncorrected technical violations. Fines for failing to comply with I-9 employment verification requirements can range from $216 to a maximum of $2,156 for each form.

Any employer who knowingly hired or continued to employ an unauthorized worker may be criminally prosecuted, and the company can be debarred from participation in federal contracts. Civil fines for knowingly hiring an unauthorized alien for employment can range from $539 to a maximum of $21,563 for each unauthorized alien.

ICE is committed to increasing work-site enforcement, particularly in cases of low skill and high turnover industries. Employers should regularly audit their I-9 procedures, compliance, and recordkeeping; establish a protocol to identify persons responsible for dealing with a government inquiry; and be sure that all policies and protocols relating to recordkeeping and government compliance are current.

For more information about I-9 Audits or any other Immigration Law matter, please contact Elaina Smiley, Joel Pfeffer or Gary Sanderson.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.