How To Handle An I-9 Investigation

If you are a business who employs people in the United States, make no mistake about it—you need to know how to handle an I-9 investigation. While typically not every single business is subjected to one of these inquiries, they are happening with increasing frequency in recent years. It is in a company’s best interest to be prepared because being found non-compliant during an I-9 investigation can carry heavy penalties.

How Does A Company Know If They Will Be Investigated?

Simply put, you won’t know.

Most I-9 investigations come without warning and arrive in the form of a Notice of Inspection (more commonly referred to as an NOI) via U.S. Immigrations and Customs Enforcement (ICE). Although getting served with an NOI can be alarming in and of itself, panic tends to multiply once an employer realizes that they have only three days to provide investigators with the documentation they require.

I-9 Investigations, Audits, and Raids

If your company undergoes an I-9 scrutiny, it usually does so via one of the following two scenarios:

1. ICE Audit
2. ICE Raid

While both types of investigations can be performed by U.S. Immigrations and Customs Enforcement in regard to the Form I-9, that is where the similarities end.

A typical audit is the more common of these two types of investigations and can have more of an administrative feel to it. An NOI is served and Form I-9 documentation is requested within three days. These audits can include court subpoenas for documents, and review of these documents is often quite thorough, sometimes taking three to six months to resolve. Don’t let the administrative nature of this type of investigation fool you. If there are paperwork errors found that are uncorrected or that show significant errors in judgement, there can be substantial fines and penalties.

The other form of investigation, an authorized raid, can be more stressful as it is more immediate in nature. Raids can include the inspection of a business and a request for their documentation and has more legal heft behind it as it is usually authorized by a judge. Although the results of the paperwork associated with a raid can take some time to properly sort out, companies in severe violation of I-9 compliance could potentially see arrests made on the spot in some cases.

What Kind of Documentation Do Investigators Typically Require?

It can be helpful to think of an I-9 audit similarly to a tax audit. For a tax audit, individuals are required to have a paper or digital trail of purchases and tax deductions to submit to federal agencies. ICE audits work similarly in that they typically require companies to provide a large amount of documentation that pertains to Form I-9 practices.

Because the number of Form I-9 audits are estimated to be on the rise, companies should make haste to ensure that they can easily access the below information and documentation in the event of an ICE audit:

• Original Form I-9s for all current employees
• Original Form I-9s that are being retained per federal guidelines
• Copies of Form I-9 supporting documents
• No-match social security letters on file
• E-Verify confirmations for employees

Companies that utilize digital I-9 software are still required to provide these same items, and some additional items in the form of:

• Electronic files and electronic signature processes
• Easy to follow audit trails
• Demonstration of digital I-9 software
• Demonstration of secure access to electronic files

In addition, some general information companies will want to have handy for investigators can include:

• Company owner name and contact information
• List of employees (including temporary workers and subcontractors)
• Payroll information
• Company tax statements for the last three years
• Contact and address information for all company locations

Potential Investigative Outcomes

Regardless of the type of investigation performed by authorities, any failure to be compliant with proper Form I-9 protocol could result in one of the following outcomes:

• Warning: A warning notice can come as the result of verification violations that were found during the course of the investigation, but that may not merit a fine if the employer promises future compliance in good faith.
• Notice of Technical or Procedural Failures: This type of notice alerts employers to the presence of technical violations. From the time of receipt, the employer has approximately ten days to correct any issues before they become considered violations.
• Notice of Discrepancies: Receiving a Notice of Discrepancies typically means that the investigators were not able to determine if one or more employees are indeed eligible to be working for the company.
• Notice of Suspect Documents: This is a further step in the wrong direction than the above. A Notice of Suspect Documents usually means that investigators have found that one or more employees are in fact not eligible to work. Companies typically have the opportunity to prove that the investigators’ determination was an error. However, if unable to do so, it could result in substantial consequences if a company continues to employ the said individual(s).
• Notice of Intent to Fine: This kind of notice usually translates to significant problems for a company. A Notice of Intent to Fine is issued if there are uncorrected or substantive violations or if a company knowingly hires or continues to employ those employees not eligible to work. Companies receiving this notice may be issued heavy punitive fines or other consequences.

Don’t Wait for an Audit or Raid to Be Investigation-Ready

One of the most important things a company can do when considering how to handle an I-9 investigation is to be as proactive as possible. Five steps that companies should follow to ensure they are better prepared for an investigation are:

1. Know proper Form I-9 protocol and train all managers accordingly.
2. Provide periodic refresher courses for those involved with Form I-9 processes.
3. Depend on digital I-9 software from a reputable provider to help minimize error and audit complications.
4. Conduct quarterly audits to stay on top of any compliance issues that may arise.
5. Prepare a file with some of the general company information required by investigators so it is ready to go upon request.

If you have questions about how to handle an I-9 investigation, please reach out to i9 Intelligence today for answers.