Immigration and Customs Enforcement (ICE) has increased worksite investigations, making understanding I-9 audits more relevant than ever for business owners. When a negative audit can cause millions of dollars in fines and penalties as well as prison time, it pays to evaluate procedures and perform a self-audit before ICE does. The agency is particularly concerned with industries that (1) pertain to critical infrastructure or (2) have traditionally been known to exploit undocumented workers. But even an anonymous tip can bring agents to your door. Here’s an overview of what to expect with an ICE investigation.
Understanding I-9 Audits
The Immigration Reform and Control Act of 1986 mandated that employers verify both the identity and work eligibility of each employee thereafter and provided for civil and criminal penalties for violations. Subsequent regulations created the Employment Eligibility Verification Form (I-9) as the means and require employers to maintain I-9s for current employees always, and former employees for a time. The federal government has the right to inspect the forms, and that process begins with serving a Notice of Inspection (NOI), giving the employer a minimum of three business days to produce an I-9 for each employee. The NOI may also request additional documentation such as a payroll copy, Articles of Incorporation or business licenses. ICE audits the forms and documentation, inspecting them for technical or procedural violations.
The most common notifications are these:
- Notice of Inspection Results—Often called a “compliance letter,” the business is told it has been found to be I-9 compliant.
- Notice of Suspect Documents—The business is told that an employee’s documentation is insufficient and he or she is therefore unauthorized to work. Both the employer and employee may attempt to establish legitimacy, but the employer is open to criminal and civil penalties for continued employment.
- Notice of Discrepancies—ICE has been unable to determine work eligibility so additional documentation is required to verify status.
- Notice of Technical or Procedural Failures—If errors are found, the employer has ten business days to make corrections. If left uncorrected, technical and procedural failures become substantive violations.
- Warning Notice—A warning is issued when substantive violations are found, but the employer is expected to comply in the future. These do not reach the level of financial penalty.
- Notice of Intent to Fine—Fines may result for:
- Substantive violations;
- Uncorrected technical violations;
- Knowingly hiring undocumented/ineligible workers, or
- Continuing to employ undocumented/ineligible workers.
If the case reaches the level of fines, each violation will be detailed, and the employer may either negotiate a settlement or request an administrative hearing within 30 days. If he does nothing, a Final Order is issued.
Determination of Fines
Fines are based on an equation derived from two schedules, typically calculated from the date of inspection:
Knowing Hire/Continuing to Employ Fine Schedule
+
Substantive/Uncorrected Technical Violations Fine Schedule
Each schedule can be enhanced or mitigated by what ICE calls the Enhancement Matrix.
Knowing Hire/Continuing to Employ Fine Schedule—ICE will divide the number of these violations by the total number of employees for the violation percentage. The schedule is allocated by percentage and increases with the number of times the employer has violated this law. The range is currently from $548 to $19,242 but is subject to change with inflation.
Substantive/Uncorrected Technical Violations Fine Schedule—ICE will divide the number of violations by the total number of employees for the violation percentage. Also allocated by percentage, this schedule increases on whether it is the employer’s first, second or third+ offense. The range is currently from $220 to $2,191.
Enhancement Matrix—Each schedule’s fine may be enhanced or mitigated by up to +/- 5% based on the following six factors:
- Business size;
- Good faith;
- Seriousness;
- Unauthorized aliens;
- History and
- Cumulative adjustment.
While this is the typical means of determining fines, violations can also result in:
- Additional civil or criminal penalties for a pattern of violations;
- Debarment from government contracts;
- Back pay for individuals discriminated against, or
- Being required to hire individuals discriminated against.
Recheck Your I-9 Procedures
ICE’s goal with its surge in investigations is to promote a “culture of compliance” to enhance public safety and national security while protecting lawful companies from unfair competition. The safest way to live in such a culture is to comply fully with it. I-9s are legal documents, and businesses are liable for administering them properly and for keeping up with changing immigration and employment laws. Performing a self-audit can be a useful exercise to reinforce I-9 compliance procedures. I-9 software can be helpful in filling out and tracking the forms and expiration dates, as well as incorporating changes to the law and regulations. Whatever your approach, it’s preferable to have a solid system in place, just in case ICE comes knocking.