While the number of inspections performed by Immigration and Customs Enforcement (ICE) are widely considered to have eased in the past couple of years, what employers need to know about ICE audits and I-9 compliance is still as critical as ever. This is due in large part because there are still audits conducted on U.S. companies every day, and they can be an effective tool in encouraging a culture of compliance among the company being audited, as well as others within the industry.
What Employers Need to Know About ICE Audits and I-9 Compliance
Once an audit by a government agency is already in motion, an employer is somewhat limited to what they can do to right the ship before the damage is done. With this thought in mind, the best policy for employers to adopt is a proactive approach.
When it comes to what employers need to know about ICE audits and I-9 compliance, the most effective plans are those that make compliance part of the company culture rather than the sole responsibility of a couple of individuals or the human resources team. The success of such an endeavor is based on thoroughly training management on the importance of facilitating I-9 compliance based on detailed protocol. The ability of these individuals to understand how to properly fill out all three sections of the form within the hard deadlines set forth is key. Failure to do so can create an environment of carelessness that can yield hefty fines and penalties and can render an employer unprepared should they receive a Notice of Inspection.
Some of the most frequently cited compliance issues found in official audits of employers have included:
- Failure to present Form I-9s for all employees
- Failure to meet specified Form I-9 deadlines
- Incomplete Form I-9s with blank fields or missing pages
- Not specifying the category of employment authorization
- Missing signatures of employees vouching that they are indeed legally eligible to work in the U.S.
- Missing documents for identity verification and work authorization
- Unacceptable documents (those not listed on the I-9 form as acceptable) for identity verification and work authorization
- Incomplete documentation regarding document expirations
- Missing signature of employer regarding confirmation of document review for identity and work eligibility
- Failure to conduct reverification of employment authorization as needed
While these common mistakes may seem minor at first glance, it is key to remember that each incident of the above becomes an issue during an official audit. Therefore, if an individual was improperly trained or simply forgot to sign off for reviewing an employee’s documents for identity and work eligibility, every single employee’s Form I-9 missing that signature can become a separate fine. In other words, one repetitive mistake across multiple Form I-9s is not seen as one comprehensive error, but as multiple errors- most of which can come with serious consequences.
What to Expect When in Terms of Penalties for Compliance Violations
As of January 11, 2022, The Department of Homeland Security essentially increased fines for Form I-9 paperwork violations. Some employers could be issued violations yielding penalties of anywhere from $252 to $2,507 per incidence. Consider for a moment that an employer has 50 employees, all of which have the same paperwork violation on their Form I-9s. If violations resulted for each, that employer could be facing fines of anywhere from $12,600 to $125,350, and that is for only one repetitive mistake. If there were multiple mistakes per form, those numbers could dramatically increase.
Inspections by ICE can result in a complaint being filed before the OCAHO (Office of the Chief Administrative Hearing Officer). As part of the Executive Office for Immigration Review, administrative law judges (otherwise known as ALJs) will be tasked with ruling on cases that fall under the Immigration and Nationality Act, which can include employer sanctions for incorrect employment verification.
Should ICE serve an employer with a Notice of Intent to Fine (NIF), the employer then must decide to:
- Pay the fines issued,
- Negotiate some sort of settlement, or
- Ask for an OCAHO hearing within a specific window of time.
It is worth noting that the OCAHO has been trending toward reducing employers’ assessed penalties by an average of more than thirty percent in the past year or two. This means that it could be possible for OCAHO to deem ICE penalties per violation as too high and result in them lowering the penalties. While the lowering of ICE penalties by OCAHO is not by any means a given, it is a trend worth paying attention to.
Employers must realize that even though a penalty could be reduced, it can still add up quickly and have a negative impact on an employer’s bottom line. For this reason, it is necessary for employers to take a proactive stance in protecting themselves before they are officially audited.
How Employers Can Better Protect Themselves Against Compliance Issues
For most employers, the thought of incurring repetitive compliance violations can cause both panic and motivation to ensure that they are proactive in guarding against them. What employers need to know about ICE audits and I-9 compliance is that there are steps they can take to better protect themselves, such as holding frequent trainings for individuals who will be processing the Form I-9 and conducting regular internal audits in advance of receipt of a Notice of Inspection.
One of the best steps an employer can take to safeguard against serious compliance violations is to work with a reputable I-9 intelligence company who also offers digital I-9 compliance software. Such software is designed to assist employers with compliance before it becomes an issue in an official audit.
Five ways digital I-9 compliance software can help are:
- Alerting employers about common on-boarding mistakes such as incomplete or missing fields and signatures before a form is submitted and these things become roadblocks to compliance,
- Tracking soon-to-be expired documents so employers are alerted of reverification needs before a document expires,
- Assisting with Form I-9 archiving to help employers determine which forms should be retained and which need to be disposed of,
- Centralizing reporting to aid with regular non-official internal audits as well as official government audits, and
- Assisting in official audits with audit trails and mass prints of Form I-9s and related documentation as needed.
By understanding what employers need to know about ICE audits and I-9 compliance, they can take critical steps and be better prepared for an official I-9 inspection while potentially reducing their risk of liability.
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