Immigration and Customs Enforcement (ICE) has been in the news quite a bit since the Trump administration came into office. Less covered than the stepped-up deportations, however, has been the surge in what are known as Form I-9 audits, in which ICE inspectors review businesses’ documentation regarding the work authorization for foreign employees.
I-9 audits can be consequential for employers who fail to comply with the law. Fines for failed I-9 audits can run into the tens of thousands of dollars, and repeated willful violations of the law could even lead to criminal prosecution in rare cases.
Here’s a look at the I-9 audit review process, as well as advice from experts on how to proactively prepare for an I-9 audit if your business receives a notice of inspection from ICE.
Employers who hire foreign nationals are required to fill out and maintain the federal government’s Form I-9, which demonstrates work authorization status for each foreign employee. While employers are required to maintain and update these records accordingly, many small businesses are not required to submit any documentation to the government unless they are subject to an audit. As a result, many small businesses allow their I-9 records to fall out of date and sometimes become inaccurate, said Henry Mascia, an immigration attorney at Rivkin Radler.
“Larger companies have HR professionals that are trained in this area, and they usually do a very thorough job, but small businesses often don’t have that sense of urgency,” Mascia said. “They don’t have to file the I-9; they just have to keep it in their office. So, a lot of companies don’t have the sense of urgency that they should, and [despite the surge in audits] we’re not seeing many of them do a better job.”
Form I-9 requires you as an employer to verify the identity and employment eligibility of everyone who works for you. Even if an employee leaves, you have to keep their I-9 for at least three years from the date of hire.
ICE announced in a press release that the agency issued 5,200 I-9 audits from the start of the year through July 2018, which represented a fourfold increase in the rate of audits over the previous fiscal year. While that number is relatively small in the big scheme of things, Mascia said employers should be aware that the Trump administration has made stricter enforcement of immigration law a high priority and the trend should be expected to continue.
“Enforcement is something that by its nature is affected by the administration that’s enforcing the law,” Mascia said. “This administration has made it clear that its priority is stricter enforcement, so we can expect more rigorous I-9 enforcement for the duration of this administration.”
When you receive a notice of inspection (NOI), you have three business days to produce the I-9 forms for each employee. The government agency may also request an employer to supply supporting documentation, which could include a copy of the payroll lists, lists of current employees, articles of incorporation for the business and any related business licenses. The agency then reviews the forms and will either issue a violation or a compliance letter.