I-9 audits are up significantly in 2018 from recent years, continuing to be a cornerstone of the worksite enforcement strategy of the U.S. Immigration and Customs Enforcement Agency (ICE). Between October 2017 and May 2018, ICE reported a nearly 60 percent increase in employer audits, increasing from 1,360 audits to over 2,280 audits this year. ICE has stated publicly that it is planning another wave of I-9 audits this summer that would increase the total number of audits in excess of 5,000. The most recent peak in ICE audits was in 2013 when more than 3,100 workplace audits were performed. A large portion of the audit increase can be attributed to the high-profile January 2018 ICE audits at approximately 100 7-Eleven convenience stores across 17 states.
Employers should expect even more audits in the future. ICE has developed a plan to open as many as 15,000 audits per year, contingent upon funding and administrative support. This would constitute a fivefold increase from the highest number of audits in recent history. The ICE proposal includes the creation of an Employer Compliance Inspection Center charged with performing centralized audits and increasing the efficiency of the process.
Not only is ICE conducting more audits, but it is seeking harsher penalties for employers at the conclusion of these audits. From October 2017 to May 2018, 594 employers were arrested on criminal immigration charges, up from 139 during the previous fiscal year. ICE also continues to focus on certain industries, with it conducting large scale raids at meatpacking plants and franchisee stores this fiscal year.
Under the Immigration Reform and Control Act of 1986 (IRCA), all employers must establish the identity and employment eligibility of employees hired after November 6, 1986. It is critical that employers comply with IRCA and not be on the defensive when they receive a Notice of Inspection (NOI). While employers can be exposed to criminal or civil penalties for noncompliance under IRCA, the current focus is on civil fines for I-9 violations. These civil fines can range from $220 to $1,862 per I-9 paperwork error violation.
Practical Tips to Prepare for I-9 Audits
With the increasing focus on employer compliance, as well as the recent spike in substantial fines and criminal liability for employers, now is the time for companies to conduct an internal review of their I-9 forms and polish their I-9 procedures. The following are a few of the key items all employers should consider to ensure they are ready.
Revisit and Retool I-9 Systems
Employers should routinely revisit their I-9 policies to ensure they are both compliant and being practiced. Employers must ensure that, at a minimum, all employees on payroll have I-9 forms on file. Moreover, employer’s procedures should identify expiring employment authorization documents before those documents expire, so that the employer can timely reverify workers’ eligibility.
Conduct Routine In-house I-9 Audits
Upon receipt of a NOI, an employer has a mere three business days to provide ICE with all of its I-9 forms. Due to this swift response time, it is imperative that employer’s I-9 forms be centrally located, conveniently stored, accurately completed and timely reverified. Periodic internal audits ensure that the I-9 forms are correct or, if necessary, corrected well in advance of an audit. Furthermore, regular internal audits serve to identify culture problems or training opportunities that can be addressed proactively. Internal I-9 audits should be conducted with guidance from legal counsel to ensure findings and actions are privileged.
Train Staff on I-9 Completion and Retention
While the current I-9 form may appear to be a deceptively simple two-page document, the 116-page employer handbook makes clear that I-9 compliance can be complicated and requires appropriate training. All employees in charge of the I-9 process or acting as a representative of the company in completing the I-9 form must receive training. Furthermore, evidence of I-9 training has been deemed to be evidence of good faith compliance by ICE. Employers should ensure that the appropriate individuals are identified and prepared to respond in the case of an audit.
Employers should take immediate steps to ensure their I-9 forms and processes are fully compliant. It is never too late to comply with I-9 requirements, and proactively addressing compliance issues ensures that employers are prepared in the event of an unexpected audit.
Fredrikson & Byron’s Immigration Group has extensive experience representing employers in I-9 audits and negotiations. For further information, please contact Fredrikson & Byron’s I-9/Immigration Compliance Team at 612-492-7648.
