Audits by the U.S. Immigration and Customs Enforcement are a normal occurrence, but employers who proactively abide by these top ten tips for an ICE audit do not have to live in fear of them. By reinforcing a consistent and proper hiring and Form I-9 procedure from the ground up, employers can help guard against audit mishaps that could result in violations and fines.
Ten Tips for an ICE Audit
As an employer, if you wait until the start of an official audit by ICE to evaluate your I-9 records, your window of opportunity to make appropriate corrections will be limited. The key is to conduct regular internal audit in anticipation of a formal external audit and adjust your company’s compliance protocols as needed.
When it comes to preparation, our top ten tips for an ICE audit preparation are:
1. Identify a knowledgeable compliance leader who is responsible for the overall welfare of the company’s I-9 and/or E-Verify program. This program “owner” will guide the business and set the tone for how the program will be run, monitored and outline all actions required for HR and operations staff supporting the program. This leader typically drives internal audits, provides a vision for addressing deficiencies and is involved in communications with external auditors as needed.
2. Regularly train staff in Form I-9 compliance and E-Verify laws if relevant. Staff turnover is common, but in the case of a human resources and/or any staff who handles the new hire on-boarding activities it is essential that every employee understand the correct way to handle the completion of a Form I-9. This requires an employer to set up initial training for new HR employees as well as refresher training for existing employees who complete these forms on behalf of the company.
3. Be proactive in performing self-audits. Knowing where a company stands on compliance issues before an audit notice comes is an invaluable tool. Employers should periodically conduct self-audits to ensure the company is meeting the proper benchmarks and if not, identify where changes need to be made. This process can be more cumbersome for those who do not use digital I-9 compliance software which is designed to make self-audits more seamless.
4. Be up to date on Form I-9 procedure. This is particularly important amidst the COVID pandemic as some changes have been made to the process of in-person inspection of identification documents for employees that are solely working from home. Employers must ensure they are using the most current guidelines (I-9 M-274 and E-Verify M-775) possible as provided by the Department of Homeland Security and U.S. Immigration and Customs Enforcement.
5. Know where the Form I-9s are stored. During an audit, officials will request to examine the I-9 forms an employer keeps on file. For organized, easy access to these hard copies, employers should keep one binder of current employees’ forms and a separate binder with terminated employees’ forms. Placing each employee’s Form I-9 in their personnel file only complicates and prolongs the amount of time officials will be present.
6. Follow proper document retention protocol. To be compliant, a Form I-9 is required for active employees. In the case of terminated employees, their Form I-9 is only required to be kept for either one year from the date their employment ended, or for a minimum of at least three years from the date of hire. Employers should abide by which ever period of time is longer.
7. Compare your payroll against your completed I-9 forms and identify any missing I-9 forms. Gather pertinent information. In addition to a list of current employees via an employer’s payroll, other commonly requested documents by ICE personnel can include a list of terminated employees, the company’s business licenses, and the company’s articles of incorporation. It is recommended to keep this information current and in a quickly accessible location.
8. Understand the audit process. An employer will be served a Notice of Inspection, sometimes referred to as an NOI. Upon receipt, the employer has a minimum of three business days to produce the documents (usually the Form I-9) noted in the NOI.
9. Know your rights regarding procedural and technical errors and possible violations. If Immigration and Customs Enforcement finds procedural or technical violations, the employer typically is allowed a minimum of ten business days to make approved corrections. Should these corrections not be made in the given window of time, they may result in violations.
10. Understand the risks of knowingly hiring or continuing to hire an individual that is unauthorized to work under the Immigration Reform and Control Act and avoid them. These risks are much steeper than that of technical or procedural violations and could potentially result in debarment by Immigration and Customs Enforcement.
By following the above tips for an ICE audit, an employer can be more proactive, prepared, and have an increased peace of mind about both the process and the outcome. If you do not currently utilize an electronic I-9 software, give serious consideration into investing in this technology – it can exponentially improve your compliance and create administrative efficiencies that will be immediately realized and protect your bottom line.
Learn Audit Terminology and What It Means
Preparing for an audit well in advance is perhaps the biggest key to success, but it is equally important to understand how the audit process works and the terminology involved.
After ICE completes the inspection of a company’s Form I-9 collection and related documentation, the employer will receive evidence of its findings via one of the following notices:
- Notice of Inspection Results. This is the preferred outcome for an employer as the notice notifies an employer that it is compliant in employee eligibility verification requirements.
- Notice of Suspect Documents. If an employer receives a Notice of Suspect Documents from ICE, it indicates that they have found an issue with documentation or work authorization. From the time of its receipt, the employer and employee are given a specific window of time to prove otherwise.
- Notice of Discrepancies. Should a company receive a Notice of Discrepancies it can indicate that ICE is not able to determine an employee’s work eligibility based on their Form I-9 and related documentation. The employer is then tasked with passing the notice along to the employee and giving them an opportunity to prove valid work authorization with additional documentation.
- Notice of Technical or Procedural Failures. An employer who receives this type of notice generally means ICE found evidence of procedural or technical errors and is given a minimum of ten business days to make corrections. After this time, if the errors are not corrected, they may turn into official violations.
- Warning Notice. Under certain conditions, some employers may receive a Warning Notice if substantive verification violations were found, but there is an expectancy of future compliance by an employer.
- Notice of Intent to Fine. This notice is generally in response to the identification of significant violations, technical corrections that were not made, and knowingly hiring or continuing to employ violations.
If an employer abides by these ten tips for an ICE audit and invests time in understanding proper audit terminology, they can be more confident in their path to I-9 compliance.
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