Are you ready for ICE to audit your I-9s?
Updated: May 6, 2020
It’s no secret the Department of Homeland Security has increased the number of immigration enforcement agents (ICE) to seek out those who are undocumented aliens and perform deportation across the nation. What you may not know is they have requested and are funded to increase the number of ICE agents assigned to perform employment compliance audits by a factor of 5 for 2018 and going forward. It is estimated about 700,000 U.S. employers of all sizes will be audited in 2018 alone.
What is in question is the documentation employers keep to demonstrate correct verification of their employees. The baseline document is form I-9 that is mandated to be completed and kept on file to prove the eligibility of employees to work in the U.S. However, these compliance audits may involve far more that looking at the I-9s.
The audits come in different forms, by email, phone calls, desk reviews and site visits to verify that an employer has accurate and complete documentation. The audits will also likely review and cross reference other substantiating documentation. These substantiating documents include payroll records, employee rosters, past employee list, tax statement, earnings statement, Social Security Administration correspondence, business license, articles of incorporation, etc.
Employers are usually given a 72 hour notice that an ICE audit will be performed so that you can get your documents ready. If you’re in California, new in 2018, you want to make sure to notify employees you’ve received the notice of the ICE audit within 72 hours of the audit. You also must request the agent brings a subpoena or court order to look at employee documents, otherwise you must refuse or face fines from California up to $10,000 per violation.
But let’s back up to prepare for such an audit - first and foremost you want to be sure that your I-9s are the correct version for when the employee was hired, they are filled out correctly and completely and retained as required. Do not file in an employee’s personnel folder and separate out those for terminated employees.
It has become common practice for many businesses to go paperless and it is acceptable to have the I-9s be kept as electronic files, too. The requirements are that they are to be kept securely, only viewed on a “need to know” basis and easily retrievable.
It is important to note that the I-9 form is required and may NOT be replaced by E-verify or Social Security Administration name and number cross reference.
Next you’ll want to know where all of your company documentation that will be required for substantiation of the I-9s is so that you have access to it when you need it.
Unfortunately, the fines have been increased, too, since Jan. 1, 2018. In 2015 the fines were $110/day of employment per employee. They are now $242/day of employment per employee. If it is a minor clerical error, they can let you off the hook with no fine. However, if the agent thinks the employer has made a substantial error or has intentionally hired an undocumented alien, the fines can be 5% on top of the baseline fine plus additional penalties. Needless to say, this can cost a lot of money.
I recommend that you have an audit done of your I-9s to make sure they are filled out completely and correctly. If you are not trained in I-9 form fill out or, like so many others, have other things to do and can’t find the time to do a thorough I-9 audit, let me know. We are happy to help you and available when you need us.
Karen Mathews Radau, CEO and Sr. Consultant Small Business HR Services®, Chapter 113
Karen Mathews Radau has been in business for 12 years doing organizational effectiveness, career coaching and human resources. She is passionate about helping her clients be successful, manage their risk as an employer and develop a culture of compliance.
Karen is certified as an HR Professional, has an M.A. in Organizational Psychology from JFKU and a B.S. in Business Management from UOP. She has additional training and certifications, most notably as a Certified Coach and NLP (Neuro-Linguistic Programming) Master Practitioner. See more at www.Smallbizhrservices.com.