I-9 Immigration Audits Are On the Rise and May Lead to Criminal Prosecution

U.S. Immigration and Customs Enforcement (ICE) has ramped up the number of Form I-9 inspections in recent years, indicating that employee verification has become a top priority for ICE.  While the increase in audits has impacted numerous industries, our firm has seen a particular interest by ICE in auditing restaurants, construction companies, and nail salons.  In addition to employers, ICE has also targeted individual executives and managers who made hiring decisions.

Employers who fail I-9 inspections can face stiff fines, forfeiture of assets, and even prison.  It is for this reason that employers should consider hiring a law firm when ICE conducts a Form I-9 Inspection.

What is the Form I-9?

Federal law requires employers to verify the identity and employment eligibility of their employees.  The Employment Eligibility Verification Form I-9 is the means by which employers are required to document this verification.  Employers are required to maintain the original Form I-9 for all current employees.  Employers must also retain the original I-9 Form for all former employers for at least three years from the date of hire or for one year after the employee is no longer employed (whichever is longer).

The purpose of I-9 inspections is to deter businesses from illegally employing individuals.  As discussed below, the Form I-9 inspection program is one of the most powerful tools the government uses to ensure that companies are properly following employment laws.

What happens during a Form I-9 inspection?

A Form I-9 inspection will typically begin with ICE serving a Notice of Inspection on an employer.  The notice informs the employer that ICE will be conducting a thorough review of the employer’s hiring records.  When an employer receives this notice, the employer is required to produce the I-9 forms within three days.  ICE will often also request other documents including a list of current employees, a copy of the payroll, and any business licenses.

ICE does not need a search warrant or the consent of the employer to obtain the I-9 forms.  Compliance is mandatory, and if an employer refuses to comply, he or she will likely face penalties. Once the documents are delivered to government agents, ICE auditors will conduct an inspection to determine if the employer has complied with federal employment laws.

What are the possible penalties during a Form I-9 inspection?

If ICE finds a violation during an I-9 inspection, it may impose penalties.  For technical violations, ICE will require the employer to make corrections within 10 days.  If a substantive violation is found, ICE will either levy a fine or issue a warning to the employer. ICE will also require the employer to correct the violation.

Penalties for each substantive violation found by ICE can be more than $2,000.  If ICE finds that an employer knowingly hired unauthorized workers, it can impose penalties of more than $20,000 for each violation.  When determining the amount of a penalty to impose, ICE will consider the size of the business, seriousness of the violation, history of violations, whether unauthorized employees were involved, and good faith efforts made by the employer.

In addition to monetary penalties, employers need to be aware that I-9 inspections can lead to criminal prosecution if the audits show that the employer knowingly hired unauthorized employees.

How can a lawyer assist in a I-9 inspection?

Dealing with any government agency is a stressful and often risky endeavor.  This is especially true when the consequences can be a significant fine or jail time.  A lawyer experienced in handling I-9 inspections and federal criminal investigations can deal directly with the ICE agent in charge of the inspection.  This means that the lawyer will answer any questions that ICE may have about the business instead of the employer.

A lawyer will also ensure that the employer has provided all of the necessary documents to the ICE agent or auditor handling the inspection.  If a violation is found by ICE, an attorney can argue that no fine should be imposed or explain why a lower fine should be imposed than the one contemplated by ICE.  During this process, a lawyer can also help to ensure that a simple I-9 investigation does not evolve into a federal criminal investigation.


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