The federal government’s taking a closer look at employers’ I-9 forms, with a nationwide audit already underway and more investigations likely to come soon.
Earlier this month, U.S. Immigration and Customs Enforcement (ICE) announced I-9 audits of more than 650 employers. The agency’s shifting more of its resources in the fight against illegal immigration to going after employers who fail to hire in compliance with the law and keep proper records.
ICE described the audits as a “first step,” meaning more rounds of inspections are probably coming. Here are the answers to some common questions about ICE’s investigations:
1. Who’s affected?
Anyone can be audited. ICE said the companies in the current investigation were chosen based largely on anonymous tips. Experts say certain industries, such as construction, manufacturing, hotels and restaurants, are being watched more closely than others.
2. What happens during the audit?
ICE starts the process by sending the employer a notice of inspection (NOI) with subpoenas for certain documents. In addition to I-9s, ICE is asking for some employers’ EINs, payroll records and correspondence with the Social Security Administration regarding no-match letters.
Companies have three days to send the documents, but can ask for a time extension in some cases. Either way, response to the NOI must be quick.
Once a notice arrives, attorneys recommend conducting a self-audit to correct simple mistakes before submission.
If ICE isn’t satisfied, it may conduct an interview with the employer — though the company has the right to refer the agency to an attorney. Once everything’s reviewed, the company could receive a “Notice of Intent to Fine,” as well as the names of undocumented workers who must be terminated and a list of “suspect documents,” requiring the employer to complete new I-9s.
3. How much can it cost?
In most cases, fines for bad documentation range from $110 to $1,100 per form. ICE can also pursue criminal charges if it thinks the company willfully hired illegal workers.
4. What can HR do now?
The best option for employers, of course, is to get documentation in proper order before an audit occurs. Experts recommend conducting an internal audit once a year.
Both internal and ICE audits will go more smoothly if the company keeps only the forms it needs. (The law requires companies to keep I-9s for three years after the employee is hired or one year after termination, whichever is later.) The first step of an audit should to compile a complete list of which forms should still be on file.