The employment eligibility requirement form, or the Form I-9, aims to verify the identity of an individual and whether he or she is employable in the United States. According to the U.S. Citizenship and Immigration Services, all U.S. employers must complete a Form I-9 for each paid employee – both citizens and noncitizens. There is one exception: employees hired before November 6, 1986 who are still employed at the same organization do not have to complete an I-9.
All U.S. employers are subject to I-9 audits. Audits are most commonly conducted by U.S. Immigration and Customs Enforcement (ICE), the entity tasked with ensuring employers comply with record-keeping practices and maintain proper I-9 forms for all employees. Penalties for employers who fail to comply with the law can be stiff. Fines associated with a failed audit can reach thousands of dollars; in rare cases of willful violations, some employers could face criminal prosecution.
While ICE audited more than 2,500 employers for Form I-9 compliance in 2018, they are not the only governmental organization who can review employment records. The U.S. Department of Labor and the Department of Justice’s (DOJ) Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices also conduct I-9 audits. However, the majority of audits are handled by ICE, which is part of the Department of Homeland Security.
What Does an I-9 Audit Entail?
ICE will send a notice of inspection (NOI) to your business that includes a request for documents. After receiving such a notice, the business has three business days to produce the I-9 forms. Additional supporting documentation may be requested as well. This might include payroll information, a list of current employees, the company’s articles of incorporation or a copy of the business license. The inspection may take place at the employer’s place of business or the employer may be asked to bring the documents to an ICE field office. A company that ignores, refuses, or delays an ICE I-9 inspection may be subject to prosecution.
I-9 forms must be in place for not just current employees but certain former employees as well. Once an employee no longer works for a business, the I-9 must be kept on file for either three years from the first day on the job, or one year from the date of termination, whichever is later.
After all the required documents have been submitted in response to the NOI, a thorough review is conducted. A response letter from ICE is then sent to notify the business of the outcome of the inspection. The potential outcomes of the audit include:
- Notice of Inspection Results—the business is in compliance.
- Notice of Discrepancies—based on the documents, ICE cannot determine the employment eligibility of one or more employees.
- Notice of Suspect Documents—ICE has determined that there are one or more employees that are unauthorized for employment.
- Notice of Technical or Procedural Failures—there are non-substantive violations that must be corrected within 10 business days.
- Notice of Intent to Fine—the employer is penalized for substantive violations, uncorrected technical errors, and/or knowingly employing unauthorized workers.
Are Some Violations Worse Than Others?
Violations can be either technical or substantive. Technical violations usually include paperwork errors or discrepancies in submitted information. If you have received a determination of a technical violation, you will likely have the opportunity to correct the mistake by submitting additional information to ICE.
Substantive violations are more serious violations, and these can result in a fine. Some examples include repeated and unresolved errors on the Form I-9 or the willful submission of false information. Fines and penalties are determined by a pre-established matrix developed by ICE.
Employment Lawyers Can Help with I-9 Audits
The best way to prepare for an I-9 audit is to be proactive. An I-9 processing and retention system should be put in place to ensure that paperwork is being completed and stored properly and in a timely manner. An employment lawyer can provide valuable counsel on an internal I-9 audit that your company can conduct periodically to ensure that your system is working.
If you have already received a notice of inspection, it is critical that you respond quickly. Having an existing relationship with an employment law attorney for instances like this is important to the health of your business. Contact the lawyers at Simon | Paschal PLLC for more information about how to prepare for and handle an ICE I-9 audit.