What is a Homeland Security I-9 Audit?

The U.S. Department of Homeland Security is responsible for protecting the nation’s borders, and within this capacity it enforces employers’ compliance obligations with respect to hiring foreign workers. For employers that are not in compliance, Homeland Security I-9 audits can lead to significant consequences.

Employers in the United States have numerous legal obligations at the local, state, and federal levels. At the federal level, one obligation of particular concern – and one that has received increased attention in recent years – is the obligation to verify their employees’ eligibility to work in the United States.

This obligation exists under the Immigration and Nationality Act (INA) and the Immigration Reform and Control Act (IRCA). These federal statutes require employers in the United States to take appropriate steps to ensure that both (i) the individuals they hire are lawfully in the United States, and (ii) if any prospective (or current) employee is an immigrant, he or she is eligible for employment in the relevant occupation and position. Compliance with the INA’s employment eligibility verification requirements is achieved through the completion of Form I-9, and the U.S. Department of Homeland Security (DHS) is the federal authority tasked with administering and enforcing the Form I-9 requirements.

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Homeland Security Audits Employers’ I-9 Forms to Ensure Employment Eligibility Verification Compliance

Homeland Security’s primary means of enforcing employers’ I-9 employment eligibility verification compliance is by conducting targeted audits. These audits may be conducted by Homeland Security officers or by agents with Immigrations and Customs Enforcement (ICE), which is an agency within DHS. Regardless of the specific personnel assigned to conduct an I-9 audit, the results can be the same, and employers must be prepared to defend against allegations of non-compliance in order to avoid steep federal penalties.

How Does Homeland Security Decide Which Employers to Audit for I-9 Compliance?

There are two primary ways in which Homeland Security and ICE single out employers for Form I-9 audits (although Homeland Security may rely on information from other sources as well). These are (i) by relying on complaints from private parties, and (ii) by looking for red flags in employers’ I-9 reporting data.

In order to identify employers that are unlawfully hiring undocumented workers or otherwise failing to comply with the INA and IRCA, Homeland Security and ICE rely heavily on complaints submitted to the department. Most often, these complaints come from current employees, former employees, job candidates who were denied employment, and competitors. If Homeland Security receives a credible complaint about an employer unlawfully hiring undocumented workers or failing to systematically verify its workers’ employment eligibility, then this may trigger an I-9 audit.

Homeland Security has access to an extraordinary amount of data pertaining to employers and their employees. As part of its enforcement efforts under the INA and IRCA, Homeland Security constantly analyzes its data in an effort to uncover outliers that are indicative of I-9 non-compliance. If Homeland Security’s data analysis identifies any red flags with respect to a particular employer (or potentially even a particular industry or geographic region), then this can trigger an I-9 audit as well.

What Happens During a Homeland Security I-9 Audit?

Unless a Homeland Security I-9 inspection begins with a raid of a company’s headquarters or operational facilities conducted pursuant to a federal search warrant, an employer will learn that it is being audited through the issuance of a Notice of Inspection (NOI). Upon being served with an NOI, an employer has just three days to produce I-9 forms and supporting documentation for its current and former employees. Under federal law, employers are required to retain I-9 forms for the longer of:

  • Three years from the date of hire, or
  • One year from the date of termination of employment.

During the audit, Homeland Security officers or ICE agents will thoroughly review the employer’s I-9 forms and supporting documentation in order to identify any violations of the INA or IRCA. Unless the employer hires legal counsel to intervene in the audit, Homeland Security or ICE will conduct the audit independently without the employer’s involvement; and, once the audit is complete, it will notify the employer whether violations have been identified. This could potentially be several months after the issuance of the NOI.

In order to notify an employer of the outcome of its I-9 audit, Homeland Security or ICE will send the employer one of five standardized notices or warnings:

  • A Notice of Inspection Results signifies that the audit confirmed full compliance with the employer’s employment eligibility verification obligations.
  • A Notice of Discrepancies indicates that Homeland Security or ICE has been unable to confirm one or more employees’ employment eligibility, and it will request additional documentation in order to verify the employee’s eligibility and the employer’s compliance.
  • A Warning Notice indicates that Homeland Security or ICE has identified substantive violations and that the employer must correct the violations going forward in order to avoid penalization.
  • A Notice of Suspect Documents signifies that Homeland Security or ICE has determined that your company is employing illegal workers, and it will outline the penalties that may be imposed if your company does not resolve the issue immediately.
  • A Notice of Intent to Fine is typically issued in cases involving verified substantive, uncorrected, or repeated violations of the INA or IRCA. It indicates that the employer will be fined unless it requests a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO) within 30 days.

What are Employers Required to Do During a Homeland Security I-9 Audit?

During a Homeland Security I-9 audit, employers’ obligations primarily involve submitting all requested documentation within the prescribed timeframes. This applies with respect to the original NOI as well as a Notice of Discrepancies and any other subsequent requests for additional records.

When submitting I-9 forms and supporting documentation (i.e. copies of employees’ identification and immigration documents), employers must be careful to ensure that they do not omit any pertinent files. Omitting files will increase the risk of an unfavorable audit result; and, depending on the circumstances involved, could even lead to allegations of attempting to mislead federal authorities—which is itself a federal crime.

At the same time, employers must also be careful to avoid submitting additional documentation that they are not legally-required to provide to Homeland Security or ICE. Additional records that demonstrate non-compliance or that may lead to further inquiry about whether the company has illegally employed undocumented workers cannot be “taken back” once disclosed, and they can increase the chances of the company and/or its owners or executives facing prosecution under the INA or IRCA.

What are the Federal Penalties for Form I-9 Non-Compliance Uncovered During a Homeland Security Audit?

If an I-9 audit uncovers violations of the INA or IRCA, the employer can face civil fines. These fines are imposed on a per-violation basis—meaning that the employer can be fined separately for each individual missing or invalid I-9. In some cases, companies, their owners, and their executives can also face criminal prosecution for offenses including:

  • Making false statements to federal authorities
  • Withholding material information during a federal audit
  • Obstructing justice by falsifying I-9 forms or other documentation, or by destroying records
  • Knowingly employing foreign nationals who are not authorized to work in the United States
  • Concealing or harboring illegal aliens

What if Employers Cannot Strictly Comply with the I-9 Employment Eligibility Verification Requirements Due to COVID-19?

Recognizing the challenges that employers are facing during the COVID-19 pandemic, Homeland Security issued guidance on March 20, 2020 that provides flexibility with respect to employers’ legal obligation to verify employees’ identity and immigration status in person. Specifically, Homeland Security’s News Release states:

“Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19″ as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add ‘documents physically examined’ with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.”

My Company is Being Audited by Homeland Security for Form I-9 Compliance: What Now?

If Homeland Security is auditing your company’s I-9 forms, what should you do? The most important thing you can do is to engage experienced federal defense counsel promptly. At Oberheiden P.C., we represent companies nationwide with respect to both Form I-9 compliance and Homeland Security audit defense. Our attorneys can promptly and confidentially assess your company’s compliance with the INA and IRCA, and we can work with Homeland Security and ICE on your company’s behalf in order to avoid or mitigate any potential consequences of non-compliance.

Speak with a Federal Defense Lawyer about Your Company’s Homeland Security I-9 Audit

Is your company facing a Homeland Security I-9 audit? Are you concerned about what might happen if Homeland Security or ICE requests your company’s employment eligibility verification records? To speak with a federal defense lawyer at Oberheiden P.C. in confidence, call 888-680-1745 or request a complimentary case assessment online today.

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