According to U.S. Immigration and Customs Enforcement (ICE), there were 2,282 employer audits opened between October 1, 2017 and May 4, 2018. That is 326 new employer audits opened each month. This is a 60 percent increase from the total number of employer audits opened in the prior 12 months. With an nationwide wave of audits planned for this summer, the total number of employer audits for the year could rise to well over 5,000. Are you prepared?

The sharp increase in employer audits signals the current administration’s crackdown on illegal immigration is reaching deep into the workplace, especially among employers who rely heavily on immigrant labor. Derek Benner, head of ICE’s Homeland Security Investigations unit, said the agency’s focus on employer compliance is important because illegal hiring creates unfair advantages for companies, encourages illegal immigration into the United States, results in document and identity fraud, and exposes workers to potentially dangerous and unfair working conditions.

The 2,282 employer audits opened thus far for 2018 has resulted in 594 employers being arrested on criminal immigration charges and 610 being charged with civil immigration penalties. Both of these numbers are up significantly from the prior 12 months. Penalties for “knowingly hire or continuing to employ” violations are a minimum of $548 per violation for first time violators up to a maximum $19,242 per violation for repeat offenders according to the most recent fine schedule.

Are You Prepared for an ICE Audit?

Employers are required by federal law to verify the identity and employment eligibility of their employees. Failure to do so can result in criminal and civil penalties. The Employment Eligibility Form I-9 (Form I-9) is the means by which employers are to document this verification. Employers must maintain original Forms I-9 for inspection for all current employees and must retain Forms I-9 for former employees for a period of at least 3 years from the date of hire or for 1 year after the employee is not longer employed, whichever is longer.

Employers will be notified of an audit by service of a Notice of Inspection (NOI) compelling the production of the Forms I-9 for inspection. Employers will have at least 3 business days to produce the Forms I-9. Following the inspection, ICE will notify the employer, in writing, of the results of the inspection. The following are common notices following an inspection:

• Notice of Inspection Results – also known as a “compliance letter,” used to notify a business that they were found to be in compliance.
• Notice of Suspect Documents – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has determined that an employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ that individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.
• Notice of Discrepancies – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
• Notice of Technical or Procedural Failures – identifies technical violations identified during the inspection and gives the employer 10 business days to correct the forms. After 10 business days, uncorrected technical and procedural failures will become substantive violations.
• Warning Notice – issued in circumstances where substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.
• Notice of Intent to Fine (NIF) – may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations.

Want to make sure everything is in order before ICE shows up at your door? We can assist with that. NAE is happy to conduct a complete or partial I-9 audit for our member organizations. The audit gives us the opportunity to review your Forms I-9 for compliance as well as educate you and your staff on common mistakes, typical problem areas, and how to avoid them so you can complete Forms I-9 correctly going forward. There is no need to worry when you have NAE in your corner. Contact us today to discuss this great value-added service and how it can help your organization.