Immigration and Customs Enforcement (ICE) is planning a nationwide increase of Form I-9 audits this summer. Derek Benner, head of ICE’s Homeland Security Investigations unit, told The Associated Press “That another nationwide wave of audits planned this summer would push the total ‘well over’ 5,000 by Sept 30. ICE audits peaked at 3,127 in 2013.” The agency has developed a plan to open as many as 15,000 audits a year, subject to funding and support for the plan from other areas of the administration, Benner said.
The plan also proposes changing the manner of delivery of the ICE Notice of Inspection (NOI) from in person to email or certified mail. Furthermore, after an initial review, by electronically scanning the I-9 forms for suspicious activity, the most egregious cases will be sent to regional offices for more in-depth investigation. Benner said the agency will focus both on criminal cases against employers as well deporting employees who are working in the country illegally.
What does this mean for employers? It is highly recommended for employers to consider conducting a self-audit, to minimize the potential of fines. Civil penalties for knowingly employing unauthorized immigrants can range from $539 to $21,563. In addition, Form I-9 paperwork violations carry a penalty of $216 to $2,156 per worker.
If a company is selected for an I-9 audit, a notice of inspection alerts business owners that ICE is going to audit their hiring records to determine whether or not they are in compliance with the law. Employers are then required to produce their company’s I-9s within three business days, after which ICE will conduct an inspection for compliance. If employers are not in compliance with the law, an I-9 inspection of their business will likely result in civil fines and could lay the groundwork for criminal prosecution, if they are knowingly violating the law.
If an employee submits a document that clearly looks fraudulent, or like it does not identify the correct individual, a managerial staff member should ask the employee to provide alternate documentation from the list of acceptable documents.
On the other hand, if a submitted document is hard to read, unclear, or confusing, no action may be required by the employer. The US Immigration and Customs Enforcement (ICE) guidance related to internal I-9 audits specifically states that an employer “should recognize that it may not be able to definitively determine the genuineness of Form I-9 documentation based on photocopies of the documentation. An employer should not request documentation from an employee solely because photocopies of documents are unclear.”
There aren’t always easy answers for how to handle situations that arise during internal I-9 audits. An employer must balance the risk of being found to have knowingly continued to employ someone without valid work authorization against the potential that their actions will lead to a claim of discriminatory treatment based on immigration status.