Are I-9 Audits on the Rise?

In 2018, U.S. Immigration and Customs Enforcement (ICE) announced a nationwide crackdown on the illegal hiring of undocumented workers. This crackdown is continuing today, and companies of all sizes are facing ICE audits focused on verifying I-9 compliance.

While protecting American jobs has always been a priority of the federal government, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) became particularly active in this area during the Trump administration. On July 24, 2018, ICE’s Homeland Security Investigations (HSI) division announced a broad-scale crackdown on companies that illegally hire undocumented workers. According to HSI’s News Release announcing the crackdown:

“‘[Hiring unauthorized workers] is not a victimless crime,’ said Derek N. Benner, Acting Executive Associate Director for HSI. ‘Unauthorized workers often use stolen identities of legal U.S. workers, which can significantly impact the identity theft victim’s credit, medical records and other aspects of their everyday life.’

“While the agency routinely conducts worksite investigations to uphold federal law, HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers . . . . HSI’s worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law.”

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What Do U.S. Employers Need to Know about Federal Immigration Law?

Given that I-9 audits are on the rise, and given that these audits can lead to civil or criminal penalties, what do employers in the United States need to know about federal immigration law?

For employers, there are two statutes of particular relevance when it comes to immigration. These are: (i) the Immigration and Nationality Act (INA), and (ii) the Immigration Reform and Control Act (IRCA). Under the INA and IRCA, U.S. employers have an affirmative obligation to verify job candidates’ and employees’ employment eligibility, and they must maintain documentation of their verification efforts for a statutorily-designated period of time.

1. Employment Eligibility Verification Form I-9

The means for complying with the INA and IRCA is through the use of Employment Eligibility Verification Form I-9. This is a form that employers must complete with respect to all job candidates and employees (employers must directly complete portions of the I-9 form themselves, and there is a section (Section 1) that must be completed by the job candidate or employee). For new hires, Section 1 of the I-9 form must be completed, “no later than the first day of employment, but not before accepting a job offer.” Employers then have three business days to complete Section 2.

Among other requirements, Section 2 contains a mandatory certification which requires an authorized representative of the company to attest that:

• They have personally examined the documents submitted by the employee to verify his or her identity (more on these documents below);
• The documents appear to be genuine and belonging to the employee; and,
• To the best of the authorized representative’s knowledge, the employee is authorized to work in the United States.

2. Documentation of Authorization to Work in the United States

During the employment eligibility verification process, employers must obtain copies of documentation confirming the employee’s authorization to work in the United States. The following documents are sufficient on their own:

• U.S. Passport or U.S. Passport Card
• Permanent Resident Card (Green Card) or Alien Registration Receipt Card (Form I-551)
• Foreign Passport with Temporary I-551 Stamp
• Temporary I-551 Printed Notation on a Machine-Readable Immigrant Visa
• Foreign Passport and Satisfactory Form I-94 for Nonimmigrant Aliens Authorized to Work for a Specific Employer
• Federated States of Micronesia (FSM) or Republic of the Marshall Islands (RMI) Passport with Form I-94
• Form I-94A Indicating Nonimmigrant Admission Under the Compact of Free Association Between the United States and the FSM or RMI

If an employee does not have one of these documents available, then the employer can accept a document from each of the following lists:

Documents that Establish Identity

• Driver’s License or ID Card from a U.S. State
• Federal or Local ID Card
• School ID Card
• Voter Registration Card
• U.S. Military Card or Draft Record
• Military Dependent’s ID Card
• U.S. Coast Guard Merchant Mariner Card
• Native American Tribal Document
• Canadian Driver’s License

Documents that Establish Employment Authorization

• Social Security Card (Unless Not Valid for Employment or Only valid with DHS or INS Authorization)
• Certification of Report of Birth from the U.S. Department of State
• Original or Certified Copy of Birth Certificate from a U.S. State, County, Municipality, or Territory Bearing an Official Seal
• Native American Tribal Document
• U.S. Citizen ID Card (Form I-197)
• Identification Card for Use of Resident Citizen in the United States (Form I-179)
• Employment Authorization Document Issued by DHS

Typically, employers are required to physically obtain these documents in order to make copies for their records. However, in March 2020, DHS issued guidance that allows employers to accept electronic copies on a temporary basis during the recent pandemic crisis. The guidance from DHS establishes specific requirements for accepting electronic copies and notating employees’ I-9 forms, and employers must still physically inspect employees’ verification documents “after normal operations resume.”

3. I-9 and Supporting Documentation Recordkeeping Requirements

Once an employer completes an I-9 form and obtains copies of appropriate supporting documentation, the employer must keep these for the longer of: (i) three years from the first date of employment, or (ii) one year from the date of termination of employment. In the event that ICE or HSI issues a Notice of Inspection (NOI) to initiate an audit, employers must be prepared to provide all I-9 forms and supporting documentation within three business days.

What are the Risks of Facing an I-9 Compliance Audit?

With I-9 audits on the rise, employers across the country must take adequate steps to ensure compliance with the federal employment eligibility verification requirements, and they must be prepared to demonstrate compliance in the event that ICE or HSI issues a Notice of Inspection demanding their completed I-9 forms and supporting documentation. The failure to do so could lead to drastic consequences. As explained in HSI’s July 24, 2018 News Release:

“If employers are not in compliance with the law, an I-9 inspection of their business will likely result in civil fines and could lay the groundwork for criminal prosecution if they are knowingly violating the law. All workers encountered during these investigations who are unauthorized to remain in the United States are subject to administrative arrest and removal from the country.”

The News Release goes on to make clear that, “[e]mployers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records.” In the event that an I-9 audit reveals evidence of non-compliance with the INA and IRCA, potential penalties can include:

• Civil fines, which are imposed on a “per violation” basis (meaning that employers can be fined separately for each individual deficient or missing I-9 firm);
• Criminal fines in the hundreds of thousands of dollars, which may be imposed on employers and/or their owners and executives who are complicit in the non-compliance;
• Debarment from eligibility for federal authorizations, programs, and benefits; and,
• Federal incarceration for company owners and executives.

What Should My Company Do Given that I-9 Audits Are on the Rise?

The most important thing that companies can do to mitigate these risks is to implement an effective employment eligibility verification compliance program. This program should include policies and procedures that address all pertinent provisions of the INA and IRCA, and that are custom-tailored to the company’s hiring practices and operations.

While completing Form I-9 is itself a fairly straightforward process, ensuring that the form is completed appropriately and that an authorized company representative can make the requisite certification is a more-complex matter. Companies must also adopt adequate recordkeeping protocols to ensure that I-9 forms and supporting documentation are both (i) kept for the requisite period of time, and (ii) kept separately from other employment records so that they can be retrieved quickly in the event that the company receives an NOI. Adequate employee training is a crucial aspect of compliance as well.

In addition to adopting the necessary protocols to ensure compliance, we also recommend that companies have federal defense counsel on call to assist with responding to NOIs. With ICE and HSI enhancing their I-9 enforcement efforts, companies need to be prepared to respond promptly if and when necessary. At Oberheiden P.C., our federal compliance and defense lawyers have extensive experience representing companies in federal audits and investigations. Our lawyers can work with you to establish I-9 compliance, and we can be available as needed to deal with ICE and HSI on your company’s behalf.

Speak with a Federal I-9 Compliance and Defense Lawyer at Oberheiden P.C.

Do you have questions about federal immigration law compliance? Has your company received a Notice of Inspection from ICE or HSI? If so, the federal compliance and defense lawyers at Oberheiden P.C. can help, and we encourage you to call 888-680-1745 or contact us online to learn more.