September 28, 2020

Volume X, Number 272

September 28, 2020

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I-9 Audits and Investigations of Employers Have Nearly Quadrupled in 2018

Government enforcement activities at businesses have significantly increased this year. The Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security (DHS) has already conducted 5,200 audits this year compared to 1,360 audits in all of 2017. This is consistent with the Trump administration’s focus on immigration enforcement.

What are I-9 Inspections?

Employers have been required to verify the identity and employment eligibility of all new hires since 1986, and document that information using Form I-9 by the third day after the first day of employment. I-9 records must be updated and retained by employers in accordance with DHS regulations. ICE conducts targeted inspections of employers’ Form I-9 records to ensure compliance with the law, and to confirm that employees are authorized to work in the U.S.

I-9 inspections, which may be targeted as a result of anonymous leads and tips, are commenced by an ICE officer serving the employer with a Notice of Inspection (NOI). When an employer receives an NOI, the employer is typically given three days advance notice to prepare for the inspection. Less time may be given if ICE presents a search warrant to the employer. Therefore, it is critical for employers to regularly conduct I-9 self-audits, and engage in regular and systematic training of human resources personnel with responsibility for I-9s to ensure that their I-9s are in order.

What to Expect

What Happens if ICE Finds Violations?

If ICE identifies violations, the agency could impose civil fines, and may also recommend criminal prosecution if there were intentional or known violations.

Fines are increasing every year. Current fines for paperwork violations range from $224 minimum to $2,236 maximum per violation. Even typos or mistakenly entering the wrong date of birth may be found to be a paper violation. Likewise, fines for violations when an employer knowingly hired ineligible workers range from $559 to $4,473 per violation. These include knowing that a new hire is unauthorized to work in the U.S. and still employing him/her, situations where the employer should have known, such as when untrained eyes could detect the lack of authenticity of documents presented, or continuing to employ an employee after learning that he or she is not authorized to work.

In short, employers have the obligation to properly and carefully complete I-9 forms and review documents. Training personnel who complete and conduct I-9 verifications is critical to remaining compliant, as well as periodically conducting audits. Enforcement activities will continue to be a major focus of ICE during the Trump administration.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume VIII, Number 240


About this Author

Angel Feng, Immigration Attorney, Mintz Levin, Visa Petitions Lawyer, Green Card, Immigration EB-5 Financing
Special Counsel

Angel focuses her practice on business immigration matters and related compliance issues. She works with employers in designing and defining corporate immigration programs and policies, and in structuring short and long-term visa strategies for management, professional and specialized skill foreign employees.  She also advises employers on discipline, suspension and/or termination of visa sponsored employees and litigation prevention measures; and counsels clients on employment eligibility verification, I-9, and E-verify compliance and employer defense in ICE audits, and worksite...