I-9 Audits expected to increase in 2020

Worksite investigations and Form I-9 audits have increased during the Trump administration, and the number of audits conducted by Immigration and Customs Enforcement (ICE) is expected to further rise in 2020, according to ICE's Homeland Security Investigations (HSI).

ICE oversaw about 4,500 more Form I-9 audits in 2018 than it did in 2017, according to data from the National Law Review, and the agency conducted 6,456 total inspections in FY2019.

As many employers know, penalties for violations can be severe. It is therefore critical that all businesses are prepared for an I-9 audit.

Below is some important information for employers regarding Form I-9 compliance and audits.

The Form I-9

The employment eligibility verification requirement was established by the Immigration Reform and Control Act of 1986 (IRCA). In general, U.S. employers must complete a Form I-9 for every individual hired after November 6, 1986, with limited exceptions.

The Form I-9 requires employers to review and record data from the individual's original identity and employment authorization documents and confirm whether those documents appear to be genuine and relate to the individual presenting them.

An employer must retain the Form I-9 for each employee either for three years after the date of hire or for one year after employment is terminated, whichever is later.

A complete list of documents that the employee can produce to verify his/her identity and employment eligibility on the Form I-9 can be found here.

What is an I-9 audit?

ICE conducts audits to ensure the I-9 records of employers are accurate and compliant with federal immigration law.

The agency initiates the review by serving an employer with a Notice of Inspection, requiring them to produce the Form I-9s for all their employees. Any employer can be subject to an I-9 audit.

Employers are required by law to have at least three business days to turn over the requested documentation, and ICE will notify the audited party in writing once the inspection is completed.

In certain situations, employers must present other records, which could potentially include a copy of the payroll, a list of current employees, Articles of Incorporation and/or business licenses. Employers should contact experienced immigration counsel as soon as possible after receiving a Notice of Inspection. Avoid submitting any documents to ICE without first speaking to an attorney.

When technical or procedural violations are found, an employer is given 10 business days to make corrections.

Potential Penalties resulting from an I-9 audit

Employers that are "determined to have knowingly hired or continued to employ unauthorized workers" in an investigation may be fined and even criminally prosecuted. Additionally, an employer could be subject to debarment by ICE. In that case, the employer is prevented from participating in future federal contracts and from receiving other government benefits.

Fines for knowingly hiring and continuing to employ violations range from $573 to $20,130 per transgression while penalties for substantive violations, which includes failing to produce a Form I-9, can be anywhere from $230 to $2,292 for each individual infraction.

ICE evaluates five factors when determining penalty amounts following an I-9 audit:

  • The size of the business
  • Good faith effort to comply
  • Seriousness of violation
  • Whether the violation involved unauthorized workers
  • History of previous violations


Common Mistakes on Form I-9

A simple mistake on Form I-9 can result in significant fines and issues for the employer. HR professionals who handle the onboarding process should be thoroughly trained in order to minimize and avoid sanctions in a worksite investigation.

Common mistakes include:

  • Has the employee and HR representative signed the appropriate sections and made the appropriate attestations?
  • Did the employee complete Section 1 on or before his/her first day of work?
  • Did you, as the employer, review and enter only acceptable List A or List B and List C documents on the I-9? Additionally, was the employer's role limited to only reviewing the documentation for completeness? Employers are prohibited from asking for specific documents.
  • Are all the appropriate boxes checked and completed?
  • Did you, as the employer, complete the reverification process for the employee in Section 3 appropriately?
  • Are you, as the employer, using the most up-to-date and current (unexpired) I-9 form?

Tips to prepare for an I-9 audit

An employer should prepare for ICE audits by proactively conducting internal reviews of their I-9 records to help ensure they are accurate, properly completed and current. Employers are encouraged to contact experienced immigration counsel to assist with internal I-9 audits and establish a plan to follow in order to ensure continued compliance.

Additionally, employers should establish a "tickler" system that alerts them in advance when an employee's work authorization will soon expire and needs to be reverified. Employers should also review internal policies to ensure the training, hiring and onboarding processes are being handled consistently and appropriately according to the law.

For example, to mitigate compliance risk, employers should:

  • Conduct a risk assessment of all job applications and personnel policies
  • Understand acceptable interview questions involving citizenship and immigration status
  • Sponsor job applicants for a visa with minimum contract liability
  • Establish procedures to minimize risk of terminating non-citizen employment
  • Manage issues that arise during downsizing or restructuring
  • Make clear in the job application that providing false information and documentation is grounds for immediate termination
  • Ensure that the Form I-9 is completed for each employee within three business days of date of hire and supported by required documentation
  • Establish a policy regarding whether or not to retain copies of documents reviewed
  • Ensure that employees who are responsible for maintaining Forms I-9 are adequately and regularly trained
  • Not keep employee I-9 forms in personnel files and instead store them separately in an easily accessible area


Employers may also want to consider using E-Verify, an online system that allows for electronic verification of the employment eligibility of new hires. While participation in the program is not mandatory for some businesses, others may be required by state law or federal regulation to use E-Verify, depending on its number of employees.

FIND OUT MORE ABOUT E-VERIFY

Garfinkel Immigration Law Firm assists employers of all sizes with worksite compliance issues, providing legal counsel and representation in North Carolina, the U.S. and internationally.The Firm's attorneys are also available to provide onsite training and conduct onsite audits for clients.

As always, please do not hesitate to contact Garfinkel Immigration Law Firm by phone at 704-442-8000 or via email with any questions.

Make sure to sign up for our newsletter and follow us on social media for the most up-to-date information.