U.S. Immigration and Customs Enforcement is ramping up its efforts to ensure everyone who works in the United States is authorized to do so. Audits of employers' I-9 records are ICE's primary compliance tool.
THE LAW The Immigration Reform and Control Act of 1986 requires employers to have each new employee complete an I-9 form documenting the employee's eligibility to legally work in the United States. The I-9, which asks for various forms of identification, must be completed on the employee's first day of work.
Employers also have the option of using the online E-Verify system (www.e-verify.gov), which checks employee identity information against government data to find inconsistencies or cases where multiple people have used the same identification.
WHAT'S NEW ICE's Homeland Security Investigations unit has sent out more than 5,200 Notices of Inspection--NOIs for short--to employers across the country. HSI is issuing NOIs at a rate of more than 8,000 per year. Already, 2018 figures have smashed the previous record high of around 3,100 in 2013.
In federal fiscal year 2017, employers paid $7.8 million in civil fines and $97.6 million in judicial forfeitures, fines and restitution. In the largest employer immigration case ever, ICE assessed Pennsylvania-based Asplundh Tree Experts $95 million.
HOW TO COMPLY Receipt of an NOI marks the first step in an I-9 audit. As soon as an employer receives an NOI it should contact an attorney familiar with I-9 audits. Employers have just three days to produce I-9 forms for all employees. The attorney may be able to negotiate an extension or reduce the number of documents required.
Before an NOI arrives, employers should have already run an internal I-9 audit, with the assistance of an attorney who specializes in immigration worksite investigations. Attorneys that handle immigration issues such as visas may not have the expertise needed to handle an I-9 audit.
Specifically, the attorney handling the audit should know exactly what ICE will want to see on the I-9 documents and what the conventions are for a full-blown I-9 audit.
Note: Don't rely on the E-Verify system to guarantee you will emerge from an I-9 audit unscathed. E-Verify verifies the documents the employee produces to prove he or she can work in the U.S. legally. However, the I-9 form may still contain errors even if the supporting documents are verified.
The I-9 audit process
Once an employer receives the NOI, it means ICE agents may arrive...