What Triggers an I-9 Audit?

I-9 audits can lead to substantial fines and even criminal prosecution. For companies that are facing I-9 audits, determining what triggered the audit is an important step toward building a strategic defense.

The Immigration Reform and Control Act (IRCA) requires employers to verify job candidates’ employment eligibility from a federal immigration law perspective, and employers are required to continue to verify their existing employees’ eligibility to work in the United States as well. The method for conducting this “employment eligibility verification” is through the use of federal Form I-9.

In order to monitor companies’ compliance with their employment eligibility verification obligations, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) conduct I-9 audits. These audits (or “inspections”) involve an in-depth review of companies’ I-9 forms and supporting documentation for current and former employees.

Despite Homeland Security’s and ICE’s vast resources, they are not able to systematically audit all U.S. companies for employment eligibility verification compliance. As a result, they rely on information from a number of specific sources in order to determine which companies’ I-9 forms and supporting documentation they will review. For companies that are facing Homeland Security and ICE I-9 audits, understanding what triggers an audit can provide important insight into how to build and execute a strategic defense.

7 Potential Triggers for Homeland Security and ICE I-9 Audits

Broadly speaking, the sources from which Homeland Security and ICE obtain information that they use to initiate I-9 audits fall into three categories. These are (i) complaints from private parties, (ii) data analysis, and (iii) government sources. Each source has its own unique implications; and, as discussed in greater detail below, the source of the information that triggers an I-9 audit is can be an important factor in deciding how to structure a company’s defense.

Within these three broad categories, Homeland Security and ICE most often rely on information from seven specific sources. Those sources are: 

1. Complaints from Current or Former Employees

A significant percentage of all I-9 audits are triggered by complaints from companies’ current and former employees. Oftentimes, existing employees who believe that they have uncovered evidence of corporate misdeeds will share information with the government; and, if this information pertains to I-9 compliance and/or the illegal hiring of undocumented workers, then Homeland Security or ICE may decide to initiate an audit.

For every complaint filed by an existing employee, there are multiple complaints filed by disgruntled former employees. If a terminated employee believes that he or she has been treated unfairly, or if a terminated employee believes that his or her job was lost to an undocumented worker, then that employee may choose to report the company to Homeland Security or ICE. Oftentimes, these complaints are not particularly well-substantiated (if they are valid at all), and employers can defend against these complaints by demonstrating the terminated employee’s ulterior motive.

2. Complaints from Job Candidates Who Were Denied Employment

Job candidates who were denied employment are a relatively common source of information triggering I-9 audits as well. Individuals who applied for jobs and who were denied may choose to report a company to Homeland Security or ICE based upon either: (i) not being asked about their personal immigration status, or (ii) learning (or believing) that they lost the job opportunity to an undocumented and unauthorized worker.

Due to their limited interaction with the company, these individuals will typically have very little in the way of documentation to substantiate their allegations. Nonetheless, Homeland Security and ICE have an obligation to take all credible complaints seriously; and, if federal agents have reason to believe that a job candidate’s allegations are legitimate, then they may choose to move forward with issuing a Notice of Inspection (NOI).

3. Allegations from Market Competitors

A third source of information for Homeland Security and ICE is allegations from market competitors. Oftentimes, companies will report their competitors to Homeland Security, ICE, and other federal agencies in hopes of triggering an audit or investigation that disrupts the targeted company’s business operations. Similar to terminated employees and job candidates, competitors will often have very little in terms of documentary proof of employment eligibility verification non-compliance, but this will not stop them from trying to get the government to use its resources to give them a competitive edge.

4. Homeland Security’s Systematic Review of I-9 Data

While Homeland Security and ICE cannot systematically audit all employers in the United States, they can systematically review employers’ I-9 data. Homeland Security has an extensive database of immigration and employment verification data, and it uses analytics software to constantly search this database for anomalies, inconsistencies, and other potential red flags for non-compliance.

Given the extraordinary volume of data that is available to the federal government, Homeland Security is frequently able to identify trends within specific industries and geographic regions which suggest that individual companies or multiple companies operating in certain “hotspots” should be audited. When the data suggest that an audit is necessary, Homeland Security or ICE will promptly issue an NOI.

5. Information Obtained from Confidential Informants

In some cases, Homeland Security and ICE may rely on information obtained from confidential informants. These are private citizens who have agreed to provide information to the federal government—generally in exchange for protection in their own federal case.

For example, ICE may detain an employee who is suspected of working in the U.S. illegally or being complicit in illegally transporting or harboring foreign nationals, and then it may enter into an agreement under which the employee agrees to provide information in exchange for deferred prosecution or reduced penalties. Or, Homeland Security may have a confidential informant to apply for a job at a company and then share any information he or she obtains in relation to the company’s employment eligibility verification policies and procedures (or lack thereof).

6. Information Obtained from Alleged Co-Conspirators

Another way that Homeland Security, ICE, and other federal agencies obtain information to launch audits and investigations is through alleged co-conspirators. The consequences of facing criminal prosecution for federal immigration-related crimes can be severe, including enormous fines and substantial prison terms, and when faced with these prospects many people will gladly share information about others in exchange for a lighter sentence.

In the context of illegally employing undocumented workers and I-9 non-compliance, an example of this would be an individual who is facing prosecution for harboring aliens under 8 U.S.C. Section 1234. With the possibility of a 20-year prison sentence, a life sentence, or even the death penalty on the table, this individual may be more than willing to provide ICE with the names of the companies to which he or she was supplying undocumented workers.

7. Information Obtained from Other Federal Agencies

Finally, Homeland Security and ICE also rely on information obtained from other federal agencies. The U.S. Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Internal Revenue Service (IRS) are just a few examples. Federal law enforcement agencies frequently work together to mutually achieve their objectives; and, if agents at the DOJ, FBI, or IRS uncover evidence of possible I-9 non-compliance in the course of an audit or investigation, these agents may supply the evidence to their counterparts at Homeland Security or ICE so that they can conduct an I-9 audit as well.

Why Does it Matter What Triggers an I-9 Audit?

Now that we have discussed the most-common triggers for I-9 audits, we can discuss why the trigger for your company’s I-9 audit matters.

Oftentimes, understanding what triggered an I-9 audit will also provide insight into what information Homeland Security or ICE already has in its possession. For example, if a current employee with access to the company’s records filed a complaint, then Homeland Security and ICE could already have the evidence they need to substantiate allegations of non-compliance. In this scenario, working quickly to build a defense strategy will take on heightened importance, and it will be necessary to try to determine which specific records the employee provided.

If Homeland Security or ICE initiated an audit based on information it received from another federal agency, then the I-9 audit might not be your company’s only concern. This would generally mean that federal authorities are examining other aspects of your business as well, and you may need to prepare to defend against more than just an I-9 audit. Investigations targeting transportation or harboring of illegal aliens, immigration fraud, and tax evasion are just a few of the numerous possibilities, and you will need to engage experienced federal defense counsel promptly to make sure your business is protected.

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Dr. Nick Oberheiden
Dr. Nick Oberheiden

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John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

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Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

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Joe Brown
Joe Brown

Former U.S. Attorney & Former District Attorney

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Amanda Marshall
Amanda Marshall

Former U.S. Attorney

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Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

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Roger Bach
Roger Bach

Former Special Agent (OIG)

Gamal Abdel-Hafiz
Gamal Abdel-Hafiz

Former Supervisory Special Agent (FBI)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

Contact the Federal I-9 Audit Defense Lawyers at Oberheiden P.C.

At Oberheiden P.C., we provide defense representation for Homeland Security and ICE audits targeting companies nationwide. If you have received a Notice of Inspection (NOI), it is important that you speak with a federal defense lawyer immediately. For a free and confidential consultation with one of our highly-experienced senior attorneys, call 888-680-1745 or tell us how we can help online now.

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