Look Out, The I-9 Audits Are Here

In June 2010, ICE issued a strategic plan for worksite enforcement to be implemented
through fiscal year 2014.. The plan is well underway, and 1000 audit notices were send out earlier this year. professional conulstats at the tip of the spear of his plan tell us that employers who completely ignored them earlier in the year are calling back asking for help.

This the ICE plan:

• A key feature of this plan was to be enforcement of immi‐gration‐related employment laws, including enforcement against employers who knowingly violate the law. 
• In the intervening months, ICE has conducted education,Form I‐9 investigations and audits, and has  imposed criminal and civil sanctions.
• In its strategic plan, ICE indicated its belief that its actions would create a ʺculture of compliance.ʺ  Certain industries, including agriculture, construction, hospitality, and food processing, have been the main targets of these actions.

So how do these I‐9 audits usually go?

• An NOI (Notice of Inspection) gives a targeted employer three days to prepare for a meeting with ICE officials. 
• At that meeting, the employer’s Form I‐9 records are reviewed.
• In addition to properly completed Forms I‐9 for all current and recent ex‐employees, the employer is told to turn over payroll and other employee‐related documentation, and any documentation (such as  ʺno‐matchʺ  letters) received from the Social Security Administration, and information about the business owners.
• ICE investigators audit this information. At the audit’s conclusion, ICE notifies the employer of the results.
• If no violations are found, ICE issues a letter advising that there is no basis for further investigation.
• If violations are found, ICE may issue a  ʺNotice of Technical or Procedural Failuresʺ and give the employer 10 days to make corrections on Forms I‐9. 
• If corrections are not done or not done on time, ICE may issue a  ʺNotice of Intent to Fineʺ  (NIF) and assess fines of from $110 to $1,100 per form.

For Each Incorrect form:

• If ICE determines that information on a Form I‐9 for a certain employee is incorrect or invalid, it will issue a  ʺNotice of Suspect Documentsʺ  and require the employer to obtain new documentation from those identified employees to prove their identity and employment eligibility. 
• The employer must discharge an employee who cannot produce the required documentation. Continuing to employ identified employees without valid documentation could result in fines ranging from $375 to $3,200 per unauthorized employee for the first violation.  

If fines are assessed, ICE will issue a Notice of Intent to Fine (NIF.) The NIF lists the violations, includes details about how the fine was calculated, and specifies the total of all fines .

Within 30 days of receipt of the NIF, the employer may contest the fine by requesting a hearing before an administrative law judge.