7 Potential Triggers for Homeland Security and ICE I-9 Audits
- Complaints from Current or Former Employees. A significant percentage of all I-9 audits are triggered by complaints...
- Complaints from Job Candidates Who Were Denied Employment. Job candidates who were denied employment are a relatively...
- Allegations from Market Competitors. A third source of...
What is an I-9 audit and how does it work?
What is an I-9 audit? An I-9 audit is when federal immigration officials review an employer’s Forms I-9 to make sure they are accurate, complete, and that all its employees have the proper work authorization. An audit may be triggered for various reasons, including random samples or reporting by ex-employees.
What happens if an employer fails to complete an I-9?
Typically, the date of the violation shall be the date ICE conducted the Form I-9 inspection and not the date the Form I-9 was completed by the employer. Employers determined to have knowingly hire or continuing to employ violations shall be required to cease the unlawful activity and may be fined.
When does an employer have to make corrections to an I-9?
When an employer responds to an NOI by producing Form (s) I-9, ICE agents and/or auditors conduct an inspection of the Form (s) I-9 for compliance. When ICE finds technical or procedural violations, the employer receives at least 10 business days to make corrections, pursuant to INA §274A (b) (6) (B) (8 U.S.C. § 1324a (b) (6) (B)).
When did the I-9 form become required?
Form I-9 Inspection Overview. On November 6, 1986, the enactment of the Immigration Reform and Control Act required employers to verify the identity and employment eligibility of their employees and created criminal and civil sanctions for employment related violations.
What happens during an I-9 audit?
During the audits, Immigration and Customs Enforcement (ICE) inspectors review businesses' documentation regarding work authorization for their foreign employees. I-9 audits can have consequences for employers who fail to comply with the law.
Who does an I-9 audit target?
U.S. Immigration and Customs Enforcement (ICE) has focused on creating a 'culture of compliance' by heavily relying on I-9 inspections to find and fine Employers who do not follow immigration laws regarding employment eligibility verification.
How often do I-9 audits happen?
Employers must maintain the I-9 of an employee for three 3 years after the date of hire or 1 year from the date of termination. Most importantly, it never hurts to pre-prepare. An I-9 audit can be as smooth process if an employer can stay in compliance.
How common are I-9 audits?
Nearly 6,000 employers were I-9 audited in 2018, and some expect that number to shake out closer to 10,000 when the figures come in on 2020. $14 Million in fines were issued in 2019 for Form I-9 violations.
What is a substantive violation I-9?
Substantive errors are those that cannot be corrected because, as a result of the error or omission, the verification of the new hire's employment eligibility failed at the time the form was completed. An employer may receive a monetary fine for all substantive errors.
What should I look for in an I-9 audit?
Items Needed for Audit: ☐ List of current employees hired since November 6, 1986. ☐ List of employees terminated in the past three years. ☐ Original or electronic copies of all I-9 forms (both current employee forms, as well as forms for terminated employees within current retention requirements).
How far back does an I-9 audit go?
three yearsOnce an employee is terminated from employment, employers are required to retain I-9s for three years after the employee's date of hire, or for one year following his or her date of termination, whichever date is later.
What happens if I-9 is not completed in 3 days?
If the new hire does not present acceptable identification documents by the end of three business days after the first day of work for pay, you may terminate the employee for failing to complete the I-9 form.
What is the penalty for incorrect I-9?
The minimum fine per individual for paperwork or technical violations increased from $230 to $234, while the maximum fine increased from $2,292 to $2,332. Fines for knowingly hiring or continuing to employ unauthorized workers went up as well.
Are I-9 audits random?
An I-9 audit can be triggered for a number of reasons, including random samples and reporting by disgruntled employees (or ex-employees). Certain business sectors, for example food production, are especially susceptible to I-9 audits, and "silent raids" by ICE.
Who enforces I-9 compliance?
Officials from the Department of Homeland Security, employees from the Immigrant and Employee Rights Section (IER) at the Department of Justice, and employees from the Department of Labor may inspect an employer's Form I-9, Employment Eligibility Verification.
How much does an I-9 audit cost?
The range is $1,161 to $2,322 for second and subsequent paperwork offenses. For recruiting, referral and rehiring violations, the penalties range from $627 to $5016 for first offenses for each knowingly employed unauthorized workers.
Common Triggers of an I-9 Audit
The Form I-9, and all of its requirements and versions, can easily lead to errors, which raises red flags for ICE. The most seemingly smallest of mistakes can cause this to happen and potentially cost a company substantial fines and possible sanctions.
Tips from Potential, Current, or Former Employees
Surprisingly, a common trigger for an I-9 audit is tips made by employees. Situations involving current staff members believing they discovered non-compliance hiring evidence are frequently leading to ICE or DHS audits.
Pre-employ Helps Companies Avoid What Triggers an I-9 Audit
The majority of employers who undergo an I-9 audit didn’t purposely set out to falsify their documents or intentionally circumvent the law. Honest mistakes happen all the time when filling out and keeping these forms, but these errors can still be costly and incur hefty civil fines. Knowing what triggers an I-9 audit is only half the battle.
What is an I-9 audit?
An I-9 audit is when federal immigration officials review an employer’s Forms I-9 to make sure they are accurate, complete, and that all its employees have the proper work authorization. An audit may be triggered for various reasons, including random samples or reporting by ex-employees.
What happens if you don't have the documentation to work for USCIS?
If they fail to provide the necessary documentation within the given time frame, the employee needs to be terminated or put on a leave of absence. They may be able to work for you again once proof of eligibility to work in the U.S. has been provided.
What is the highest priority for an I-9?
Next, you are going to prioritize the I-9s. The highest priority are current employees that have no Form I-9, as this poses the greatest risk and you need to verify their eligibility to work in the U.S. immediately. The next priority is to review current employees’ I-9s to make sure they have been completed thoroughly and properly. Finally, you should review the terminated employees’ I-9s.
When should I-9 be completed?
You should establish a date when employees need to provide the required documents – generally, they should have to bring them the next day they work. The documents should be originals, and when the necessary documents are available, the Form I-9 should be completed immediately. Use current dates for the form, even if the date of hire was years ago. Attach a note to the corrected form explaining that the I-9 was completed during the audit; this is crucial as it shows that you made an effort to be in compliance and were not wilfully breaking the law.
Do I have to have an I-9?
Employers need to check and ensure that there is an I-9 on file for each and every employee currently working for you in the U.S. You should also have a list of current employees that you do not have a form I-9 for. If you have any I-9s for non-employees that do work for your organization (for instance, volunteers or consultants), you should remove them from your file.
When should I get an I-9?
All employees hired on or after November 6, 1986 should have an I-9 on file. If they don’t, they need to be contacted and instructed to provide the proper documentation.
Can I correct errors on I-9?
Keep these on hand as you go through the Forms I-9. As explained here, employers can only correct technical errors in Sections 2 and 3; errors in Section one must be fixed by the employee.
What is an I-9 Audit or an ICE audit?
The first step in an audit is delivery of a “Notice of Inspection” to the employer. After delivery, the employer has as little as three days to produce Form I-9s for all their employees. Additional paperwork, such as a copy of the payroll or a list of current employees, might also be requested.
What is substantive violation?
Bigger discrepancies, called substantive violations, are more difficult to fix. These are things like relying on unacceptable documents for employment verification. They are essentially things that would make hiring an unauthorized worker more likely.
Why do employers need to fill out I-9?
Employers fill out the Form I-9 to prove they have confirmed that their workers are eligible to work. Under the IRCA, employers must not only fill out Form I-9s for every hire, but they must keep them in their records in case the government asks to see them. The forms themselves are not very complicated.
How to protect your company from an audit?
Probably the best ways to protect your company from an audit is to do regular self-audits of your Form I-9s or to use a third party to manage and maintain your forms electronically. Internal self-audits can find mistakes, but how you correct them can be as important as finding them. Here is a step-by-step process for conducting an internal audit: ...
What to do if you forgot an I-9?
If you do a new Form I-9, retain the old form. You should also attach a short memo to both the new and old Forms I-9 stating the reason for your action. If you discover you are missing the Form I-9 for an employee: Immediately provide the employee with a Form I-9. Allow employee 3 business days to provide acceptable documents.
What does "checking the box in section 1" mean?
Checking the box in section 1 means the employee only possess temporary employment authorization. If you discover a mistake on Form I-9, correct the existing form OR if there are multiple or major errors, you can prepare a new Form I-9:
What information does an employee leave out?
Employee leaves out required information (maiden name, address, date of birth) Form is not filled out according to the time requirements. Employee does not sign one of the sections. Employee fails to check the box indicating their citizenship status, or they check multiple boxes.
What is a warning notice for I-9?
Warning Notice: Issued when substantive verification violations were identified, but there is an expectation of future compliance by the employer. However, a Warning Notice should not be issued in the following circumstances: instances where: (1) the employer was previously the subject of a Warning Notice or a Notice of Intent to Fine; (2) the employer was notified of technical or procedural violations and failed to correct them within the allotted 10-business day period; (3) the employer had a 100% failure to prepare and present Form (s) I-9; (4) the employer hired unauthorized workers as a result of substantive violations; or, (5) there is any evidence of fraud in the completion of Form I-9 (e.g., backdating) on the part of the employer.
How long does it take to correct an I-9?
Notice of Technical or Procedural Failures: Identifies technical or procedural failures found during the inspection of Form (s) I-9 and gives the employer at least ten business days to correct the forms. After this correction period ends, uncorrected technical or procedural failures will become substantive violations.
How to determine civil penalty base fine?
To determine the base fine amount, the number of substantive/uncorrected technical and knowingly hire/continue to employ violations will be divided by the number of Forms I-9 that should have been presented for inspection. The percentage from this calculation is the violation percentage that will determine the minimum and maximum civil penalty base fine amount. This percentage may change depending on whether the offense being evaluated is the employer’s first offense, second offense, or a third or higher offense.
What are the factors that determine the civil penalty amount?
Once the base fine amount is determined, the five statutory factors (size of the business, good faith of the employer, seriousness of the violation (s), involvement of unauthorized worker (s), and history of previous violation (s)) will be given consideration by ICE to determine the total civil penalty fine amount for the substantive/uncorrected technical violations the employer will be charged with. See 8 U.S.C. § 1324a (e) (5) and 8 C.F.R. § 274a.10 (please check the current Federal Register for the most updated minimum and maximum civil penalty fine amounts).
How long does it take for an employer to get an I-9?
The administrative inspection process is initiated with the service of a Notice of Inspection (NOI) upon an employer. Employers receive at least three business days to produce the Form (s) I-9 requested in the NOI. In addition, ICE generally requests that the employer provide supporting documentation, which may include, but is not limited to, a copy of the employer’s payroll, a list of active and terminated employees, articles of incorporation, and business licenses.
How long does it take for ICE to issue a final order?
The employer has the opportunity to either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF. If the employer takes no action after receiving a NIF, ICE will issue a Final Order.
What is ICE notice?
The following are the most common notices: 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 ...
Why do I get audited for I-9?
An I-9 audit can be triggered for a number of reasons, including random samples and reporting by disgruntled employees (or ex-employees).
Is it necessary to fill out an I-9?
Therefore, while proper I-9 compliance has always been important, it has never been more essential. It is not enough for employers to simply fill out the I-9 form to the best of their ability according to the basic form instructions and throw them in a file.
