I-9 Audits at an All-Time High: Are You Prepared?


The U.S. Immigration and Customs Enforcement (ICE) has been increasingly aggressive in its scrutiny of immigration-related employment practices. Audits of employer I-9 forms increased from 250 in fiscal year 2007 to more than 3,000 in 2012. Violations are also more expensive, with fines growing from $1 million to nearly $13 million between 2009 and 2012.

The Immigration Reform and Control Act of 1986 (IRCA) requires that every U.S. employer verify the identity and employment eligibility of employees by completing a Form I-9 upon hiring. Failure to do so — and thereby potentially hiring an unauthorized worker — can result in significant fines, loss of access to government contracts and negative publicity for a company. Even if all employees are authorized to work, paperwork violations can also lead to penalties. Finally, an employer faces stiff sanctions if it violates the IRCA anti-discrimination rules by asking impermissible questions concerning an employee's ethnic heritage or national origin.

I-9 investigations are generally carried out by ICE agents and initiated with a Notice of Inspection. An employer typically has three days to produce the documents requested in the notice, which may include I-9 forms, payroll records and a list of all current employees.

If investigators discover suspect documents or discrepancies, employers may present additional documentation to establish employment eligibility. Employers may also be given 10 business days to correct technical violations, such as incorrect or incomplete forms. Any uncorrected forms or other technical violations may result in civil penalties ranging from $100 to $1,000 per incorrect form; missing forms are automatically assessed a $1,000 penalty.

ICE may also assess civil penalties where an investigation reveals that an employer has knowingly hired or continued to employ unauthorized workers. These penalties are assessed according to five factors — the size of the business, good-faith effort to comply, seriousness of the violation, whether the violation involved unauthorized workers, and history of previous violations. Fines are applied per unauthorized employee and can be as much as $3,200 for the first offense and between $4,300 and $16,000 for subsequent offenses.

IRCA also provides for criminal prosecution. Engaging in a "pattern or practice" of hiring unauthorized workers is a misdemeanor punishable by up to six months of imprisonment and a fine of up to $3,000 for each unauthorized worker. Knowingly hiring 10 or more unauthorized workers for a period of a year or more is a felony and punishable by up to five years of imprisonment and/or a fine.

Employers need to take steps to avoid these significant penalties and ensure they are prepared for an audit as ICE continues to receive additional funding for enforcing ICRA's I-9 rules. All employers — even those who do not employ foreign workers — need a clear I-9 compliance policy, including a system for retaining I-9 forms and tracking deadlines and work visa re-verification requirements. Additionally, organizations should perform yearly audits, and human-resource professionals should receive regular training on I-9 compliance rules.

WeComply's online course on I-9 Compliance covers what employers and managers need to do to properly complete and retain Form I-9 in compliance with the law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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