April 24, 2019
United States Immigration and Customs Enforcement (ICE) announced that it had quadrupled I-9 inspections in fiscal year 2018. ICE initiated 5,981 Form I-9 audits and opened 6,848 worksite investigations. ICE also assessed $10.2 million in civil penalties for I-9 violations and obtained orders for over $10 million more through judicial fines, forfeitures, and other sanctions.
Employers should expect that ICE will continue to focus aggressively on I-9 compliance and inspections throughout 2019.
Preparing for an I-9 Inspection
Employers should take steps to prepare for government I-9 inspections and lower the risk of liability. Here are recommended actions:
- I-9 Training: HR professionals should receive I-9 training to ensure company-wide I-9 compliance. It is very important that I-9 rules are understood in order to achieve compliance without violating the I-9 anti-discrimination prohibitions. Training should begin with reading the 15 pages of instructions that accompany Form I-9.
- I-9 Forms for Current Employees: Confirm that you hold a valid Form I-9 for each current employee who was hired on or after November 7, 1986. There are strict timeframes for completing an I-9 Form, and doing so late is a violation. Nevertheless, a late I-9 is better for compliance than no I-9. Therefore, identify missing I-9 Forms for current employees hired on or after November 7, 1986, and promptly seek to complete an I-9 Form with such employees.
- I-9 Forms for Terminated Employees: Retain I-9 Forms for former employees for the longer of either one full year after the employment ends or three full years from the date of hire. In an audit, the government will frequently ask for I-9 Forms for former employees covered by this retention period.
- Internal I-9 Audits: Conduct periodic internal I-9 audits to review and correct, if necessary, the I-9 Forms. This is an important step to lowering the risk of liability in a government audit.
- Initial Response to Government I-9 Inspection: ICE usually will issue a Notice of Inspection (NOI) to commence a formal I-9 audit. ICE often mails the NOI, but sometimes will serve the NOI in person at the employer’s premises. Employers have three business days to respond to the NOI. ICE may ask the employer if it wishes to waive the three-day period. It is almost never a good idea to do so. Instead, employers should use the time to prepare and consider contacting their attorneys promptly to discuss the response and strategy. If ICE has a warrant, it may take the I-9 Forms immediately, but most inspections begin with the NOI.
- Fines: I-9 violations can lead to civil fines and other sanctions. ICE will consider mitigating and aggravating factors to determine where within the civil fine range to impose such penalties against the employer. Employers may appeal the fines while attempting to negotiate a settlement with ICE. For the most serious or for pattern and practice violations, criminal penalties may be imposed.