I-9 Audit

U.S. employers must complete the Form I-9 and retain documentation verifying employment for ALL workers. Department of Homeland Security (DHS) or Department of Labour (DOL) officials can impose civil and/or criminal penalties for a company that does not employ a single foreign national. U.S. employers must administer its I-9 processes in a nondiscriminatory manner and may not take adverse action against any employee, regardless of their nationality or authorization to work, who makes a complaint and/or cooperates with a DHS/DOL investigation. While ICE may conduct an I-9 audit simply to enforce documentary compliance requirements, ICE may also be on the lookout for more nefarious criminal behavior such as human trafficking, smuggling, or actively harboring undocumented immigrants.

Unlike workplace raids, ICE begins an I-9 audit by issuing a Notice of Inspection to the U.S. employer in question. From there, the employer has 3 days to proffer the requested Forms I-9, after which ICE reviews, identifies violations both technical/procedural and substantive, and affords the employer 10 days to rectify correctible technical/procedural violations.
An employer capable of correcting technical/procedural violations will likely be deemed compliant upon providing amended documents. A finding of technical/procedural violations that cannot be corrected as well as substantive violations can result in financial penalties introduced through a Notice of Intent to Fine, which could be followed by an administrative hearing with the Office of the Chief Administrative Hearing Officer (“OCAHO”) and/or settlement negotiations.

The financial penalties skyrocket when ICE deems that the violation rises to the level of knowingly hiring unauthorized workers and can even result in criminal prosecution for offenders. Importantly, the employer’s knowledge can be actual (i.e., they truly know they are employing someone who lacks work authorization) or constructive (i.e., they have good reason to believe a worker lacks employment authorization) – willful ignorance will not protect the employer.

The best action that a U.S. employer can take to avoid issues arising from an I-9 audit is to develop, implement, and periodically review internal policies and procedures for completing and retaining all Forms I-9. Having a universally followed I-9 policy in place may not only prevent violations from occurring in the first place; the policy’s existence may decrease a fine’s amount should an inadvertent violation prove uncurable.

For additional information regarding an I-9 Audit, please contact us.