Is Your Company Prepared for an I-9 Audit? What to Expect During and After a Visit from ICE or DHS

ICE auditWhile immigration enforcement and oversight have occurred under the purview of all past presidents, the Trump Administration has publicly made them a leading policy priority.  Immigration raids and detentions at the border are the most visible aspects of this policy, but administrative oversight of employment documentation has also increased and will likely have the greatest impact on the majority of employers. One area where this is especially true is with Department of Homeland Security (DHS)’s oversight of employer’s I-9 forms.

Worksite immigration enforcement rose drastically in the fiscal year 2018 compared to the previous year, following a commitment made by U.S. Immigration and Customs Enforcement (ICE) in late 2017 to step up its worksite enforcement efforts across the country.

All worksite enforcement categories surged by 300 to 750% over the previous fiscal year. Here are some surprising numbers:

• 6,848 worksite investigations in 2018 compared to 1,691 in 2017;
• 5,981 I-9 audits in 2018 compared to 1,360 in 2017;
• 779 criminal arrests compared to 139 in 2017 (including arrests and indictments of managers); and
• 1,525 administrative worksite-related arrests compared to 172 in 2017.

What is an I-9 Form?

i-9The I-9 Form is an instrumental part of the new employee on-boarding process, and should be completed within the first 3 days of hire.  This form is used to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including both citizens and non-citizens. Failure to maintain proper I-9s can lead to a variety of monetary fines or even criminal penalties if an employer intentionally misrepresents I-9 information.

What Can Go Wrong? During an Audit

On its face, the I-9 form appears to be a fairly simple and straightforward document. However, many employers fail to accurately input all required documentation, fail to obtain proper employee documentation, or fail to properly store and maintain I-9 records. Any of these oversights can lead to potentially costly fines in the event of an audit. Our clients who have been officially audited told us that ICE reviewed every line of an I-9 form for accuracy and will issue fines for every entry that is inaccurate. Therefore, it is vital that employees responsible for handling I-9 documentation be fully trained with respect to I-9 procedures. For a detailed overview of the I-9 process, see our previous article, 6 Tips for Avoiding Costly I-9 Mistakes. Continue reading

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Conduct Your Own I-9 Audit Before ICE Does: 6 Tips for Avoiding Costly Mistakes

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U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) conducted a two-phase nationwide operation in which I-9 audit notices were served to more than 5,200 businesses around the country since January 2018. A notice of inspection (NOI) informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law.

During the second phase of the operation from July 16 to 20, 2018, HSI served 2,738 NOIs and made 32 arrests. During the first phase of the operation, Jan. 29 to March 30, HSI served 2,540 NOIs and made 61 arrests.

ICE 2While the agency routinely conducts worksite investigations to uphold federal law, HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Derek N. Benner, Acting Executive Associate Director for HSI. The seriousness of these investigations is described by Mr. Benner: “This is not a victimless crime.  Unauthorized workers often use stolen identities of legal U.S. workers, which can significantly impact the identity theft victim’s credit, medical records and other aspects of their everyday life.

HSI uses a three-pronged approach to worksite enforcement: (1) compliance, from I-9 inspections, civil fines, and referrals for debarment; (2) enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and (3) outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.

From Oct. 1, 2017, through July 20, 2018, HSI opened 6,093 worksite investigations and made 675 criminal and 984 administrative worksite-related arrests, respectively. In fiscal year 2017 (October 2016 to September 2017), HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

What is the I-9 Form?

The I-9 Form is an instrumental part of the new employee on boarding process, and should be completed within the first 3 days of hire.  This form is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including both citizens and non-citizens.

To many employers and HR professionals, an I-9 form may appear to be a simple piece of hiring paperwork. However, the one page I-9 form comes with enough rules and regulations to fill a 69-page how-to manual, the M-274 Handbook for Employers.

In order to ensure compliance with the I-9 requirements, it is recommend that employers conduct and audit of their files to ensure that there is a signed I-9 form on file for each employee.  These forms should be stored together in a separate I-9 file, rather than each employee’s personnel file.  This way, in the event USCIS conducts an audit, the employer only has to turn over the I-9 file, as opposed to information about the employee that is outside the scope of the agency’s audit.  Read below for an explanation of the I-9 audits and tips to be prepared in the event you receive a visit from US Immigration and Customs Enforcement (ICE).
Continue reading

What to Do When DHS or ICE Comes Knocking at Your Door

By Anthony Mance, Esq. and Jennifer A. Grady, Esq.

ICE 2The Trump Administration has repeatedly indicated that it will take an aggressive and proactive approach to enforcing immigration laws. While it is not yet clear how and when this will translate into developed policy, it is prudent for employers to be prepared for increased oversight and enforcement. One issue that demands particular attention is how employers should handle on-site visits by Department of Homeland Security (DHS) and/or Immigration and Customs Enforcement (ICE) agents. These visits can range from basic inspections and audits to large-scale immigration raids and arrests. Any employer is subject to these visits, but keep in mind that employers sponsoring employees on employment visas such as H-1B, H-2B, OPT, L-1, TN, E-3, O-1 are also subject to visits by the Department of Labor and USCIS’s Fraud Detection and National Security Directorate.

While such visits can be confusing and intimidating, developing a coherent plan for dealing with immigration visits and effectively communicating that plan to relevant employees will reduce the risk of making costly mistakes. Do your receptionist, front-line person, and field employees know how to respond when an officer comes in with a badge and a warrant? If not, it’s time to create a plan.

The following is a brief overview of immigration-related site visits, and what employers can do to properly prepare for, and react to, such visits. Continue reading