U.S. Immigration and Customs Enforcement (“ICE”) is in the midst of a nationwide surge in employer I-9 audits,FN1 making good on the agency’s previous pledges to step up workforce enforcement efforts and “create a culture of compliance among employers.”FN2
In an I-9 audit, ICE typically requests completed I-9s for some or all employees, a list of current employees, wage and hour reports, and payroll records. Employers generally have just three days to comply with an audit request.
Between January and July of this year, ICE served more than 5,200 I-9 audit notices on employers—a nearly 60% increase in audits from last year. In addition to the audits, ICE also has made numerous arrests on criminal immigration charges.
All U.S. employers must fully complete Form I-9s within the first three days of employment, and retain I-9s for a period of three years after the date of hire, or one year after employment ends, whichever is latest. Failure to properly complete and retain I-9s exposes employers to hefty fines, ranging from between $220.00 and $2,191.00, per violation.FN3
There are a few basic steps employers may take to help minimize exposure in the event of an ICE audit. First, employers should provide I-9 training for all employees with responsibility for completing I-9 forms. Second, occasional internal audits of I-9 forms may help a company ensure that the forms are properly completed and supported with appropriate documents, and are easily accessible in the event of an ICE audit. Finally, employers served with notice of an ICE audit should immediately contact an employment or immigration attorney to help develop an appropriate strategy for responding.
FN1: ICE Press Release, ICE Delivers More Than 5,200 I-9 Audit Notices to Businesses Across the US in 2-Phase Nationwide Operation (Jul. 24, 2018), https://www.ice.gov/news/releases/ice-delivers-more-5200-i-9-audit-notices-businesses-across-us-2-phase-nationwide#wcm-survey-target-id; Elliot Spagat, Immigration Crackdown Shifts to Employers as Audits Surge, Associated Press (May 14, 2018), https://apnews.com/4f6ebb97fd294c898d81737882816f22.
FN2: ICE Press Release, infra note 1. In October 2017, ICE’s acting director “pledged to increase workplace enforcement by ‘four or five times.’” Spagat, infra note 1.
FN3: In 2017, employers nationwide incurred approximately $97,000,000.00 in fines for I-9 violations. https://money.cnn.com/2018/01/15/news/economy/ice-immigration-work-site-crackdown/index.html) This number is expected to increase in 2018. Fines for knowingly hiring and continuing to employ undocumented workers ranges from between $375.00 to $16,000.00 per violation. https://www.ice.gov/factsheets/i9-inspection.