ICE audits II – FAQs to make you wiser

September 19th, 2018 by Melissa Manna at Ogletree Deakins


This blog was written by Melissa Manna at Ogletree Deakins, authors of our Model Policies and Forms for Tennessee Employers, Massachusetts Human Resources Manual, Colorado Human Resources Manual, and Employee Benefits – An Employer's Guide. You can find the original blog post and their Immigration blog on their website.

 

ICE Ramps Up Worksite Enforcement Efforts: 6 FAQs on the Audit Process

Melissa Manna (Raleigh)

A recent announcement by U.S. Immigration and Customs Enforcement (ICE) shows that the agency is making good on its promise to quadruple the number of worksite inspections it conducts. Data released by ICE shows that between October 1, 2017, and July 20, 2018, its Homeland Security Investigations (HSI) unit opened 6,093 worksite investigations—a number three and a half times greater than the total investigations opened the year before. With more than two months to go before the end of fiscal year 2018, ICE seems well-positioned to meet its goal. 

ICE’s announcement also highlights a recent operation during which HSI served more than 5,200 notices of inspection (NOI) on employers around the country, compelling them to produce their Forms I-9 and related documentation for audit by ICE. The operation was conducted in two phases, the latest of which took place between July 16 and July 20, 2018. During that five-day period, HSI served more than 2,700 NOIs and arrested 32 people, suggesting that ICE continues to ramp up its enforcement efforts.

According to Derek N. Benner, acting executive associate director for HSI, the recent uptick in I-9 audits is motivated not only by HSI’s mandate to ensure adherence to federal law, but also by the goal of creating a “culture of compliance” among employers. “Employers 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. All industries, regardless of size, location and type are expected to comply with the law,” he said.

In light of the substantial increase in the number of NOIs being served on employers nationwide, here are some answers to a few frequently asked questions about the audit process.

1. Who can ICE audit?

Any business can be the subject of an I-9 audit.

2. How does an employer know if it is being audited?

An employer will receive an NOI requesting certain documents and possibly a personal appearance by a company representative. ICE must provide employers with at least three days to produce the documentation (unless a warrant or court order is obtained, typically as a part of a criminal investigation that requires document production in less time).

3. What is the potential liability?

Audits may result in employer fines of $216 to $2,191 per I-9 for improper completion of I-9 forms (e.g., failure to timely complete Sections 1 or 2, failure of the employer to sign Section 2, or employer acceptance of improper documents). Employers that are found to have knowingly hired or to have continued to have employed unauthorized workers may be subject to monetary penalties reaching up to $16,000 per count and criminal exposure. ICE takes a five-factor approach when considering what penalties to levy on an employer: (1) the employer’s size; (2) the gravity of the violation; (3) the involvement of unauthorized worker(s), if any; (4) the employer’s prior violations, if any; and (5) the sincerity of the employer’s compliance efforts.

4. What about criminal sanctions?

The U.S. Department of Justice may become involved to initiate criminal proceedings (e.g., for encouraging or inducing undocumented workers to remain in the country unlawfully, for assisting with securing fraudulent documents, or for a variety of other violations).

5. What types of notices should an employer expect during the audit?

During an inspection, ICE may inform an employer of important developments via several types of notices:

  • Notice of Suspect Documents: This notice serves to inform the employer that ICE has reason to believe that an employee of the employer is unauthorized to work. The notice allows the employer and employee to submit additional documentation to ICE if they believe there has been an error. ICE will typically give the employer 10 days in which to meet with the employer’s employees and address these paperwork concerns.
  • Notice of Discrepancies: This notice serves to inform the employer that ICE was unable to confirm the employment eligibility of an employee based on the information provided on the I-9. The employer must give a copy of the notice to the employee and allow him or her the opportunity to submit additional documentation to prove work eligibility.
  • Notice of Technical or Procedural Failures: This notice serves to inform the employer of technical violations (as opposed to more serious substantive violations) identified during ICE’s inspection and gives the employer 10 days to correct the affected forms. Any technical or procedural errors left unresolved after the expiration of 10 days become substantive violations.

6. What happens at the conclusion of an audit?

At the end of an audit, ICE will return the original Forms I-9 and accompanying paperwork to the employer and will serve the employer with its findings. Those findings will typically come in the form of one of the following notices:

  • Notice of Inspection Results: Also known as “compliance letters,” this notice serves to inform the employer that ICE has determined that it is in compliance.
  • Warning Notice: This notice serves to inform the employer that although substantive verification violations were found, ICE does not believe that the circumstances merit a monetary penalty.
  • Notice of Intent to Fine (NIF): This notice is served with charging documents, identifying the specific violations that the employer is charged with committing. The employer has the option to negotiate a settlement with ICE or request a hearing to dispute ICE’s findings. If no action is taken within 30 days of service of the NIF, ICE will issue a final order requiring the employer to pay the penalties levied against it. 

Employers that have not yet been audited can take some simple preparatory measures that may help to reduce potential liability that can result from an I-9 audit. Reviewing I-9 policies, training persons responsible for I-9 completion, and conducting self-audits of I-9 records in accordance with government guidance are but a few of the steps employers may want to consider taking.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these changes and will post updates on the Immigration blog as additional information becomes available.

This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.



Related posts

I've changed my name – to Optimus Prime

So say an employee, let's call him, for purposes of this exercise, Scott Edward Nall, walks into your office to let you know he has changed his name to Optimus Prime.  Do you: snicker and ask him if his Laser Axe Hand is really made of energy wonder why he isn't riding a dinosaur fall t... ..read more

ICE audits have nothing to do with freezer police

This star of the video is Melissa Azallion at McNair Law Firm, the firm that author's Model Policies and Forms for South Carolina Employers. You can find the original blog post on their Immigration Law Insights website.    ICE audits and I-9 compliance - VIDEO Melissa Azallion Increas... ..read more

Be prepared for ICE raids

If your first reaction to an Immigration and Customs Enforcement (ICE) raid would be "Ice. ICE! Baby." and a slow exhale/shaking head, then read this from our our authors at Fisher Phillips now, which includes: background: heat has been turned up in 2018 what you can do to prepare: 5-step... ..read more
HR Webinars
Terminations Got You Down? 5 Tips to Tighten Your Termination Tactics
December 17th, 2018 at 12:00pm CST by Brian T. Benkstein at Fredrikson & Byron

Unconscious bias - whether you realize it or not
December 18th, 2018 at 11:00am CST by Margaret A. Matejkovic, Esq. at Kastner Westman & Wilkins, LLC


HR Articles
SavE tHE offICe hoLidAY PArTy!
MeToo, avoiding women, and the modified Mike Pence Rule
Carnac the Magnificent says – Politicussin
Non-competes for non-skilled – non-productive, non-legal, non-enforceable?
Discrimination CHARGE! – Step 3 Cause or no cause, because you gotta do something
Discrimination CHARGE! – Step 2 Go Kim Possible for the investigation phase
Discrimination CHARGE! – Step 1 Don't panic, ask questions
Depression – what can an employer do?
Employers beware - what you say can and will be used against you
Holiday stew – ingredients for a happy and non-litigious holiday
MO - The weed du jour - marijuana médicale
Biometrics in the workplace - not a measure of bios accumulated by an employee
Thanks-giving isn't just about turkeys - include the good employees too
The best "stay" to help you retain employees
Overtime, daylight savings time and circadian rhythyms
Controlling the political speech of buttons*
Cursing, surfing, weapons, gadgets – illegal, inappropriate or OK?
How to Ghostbuster a new hire or applicant
Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)
Costumes, booze and the Great Pumpkin – beware the office Halloween party
Disability – Dr. or employee approved?
401(k) plan + payroll provider = 401k good things
Disability/pregnancy practices – what not to practice
Bad hire! Bad, bad hire!
TN – A drug-free workplace program is good
Open enrollment – personalizing perks pays off
Unpaid intern – depends on who benefits
The #1 office perk is . . . ?
FMLA leave before being eligible for FMLA leave
IL – Required expense reimbursement for your employees, not Bill Self
Help hiring holiday help here
Are the new DOL opinion letters like noses?
Public disclosure of confidential information is easier than you think
Bad mix – accommodation request and firing
If religious accommodation and a flu shot both equal angst, is that the transitive or substitution property?
Workplace shootings – 20 can-dos to prevent them
No call/no show shows. No what about it.
List 10 Up: Top tips for starting a workplace incident interview
Mr. Freeze unveils National Security Freeze tagline: "They can't steal your identity if it's frozen"
If it's called a dress code, can I wear pants?
I've changed my name – to Optimus Prime
TN: Conceal and carry means post to prohibit or permit
I'll take "ADA in 5s?" please Alex
Swearing at work – 7 rules
Is that red light flashing?
Four-legged office mates and the pawternity policies they benefit
Notice: notices and forms for FMLA that were already expired now updated virtually unchanged
Don't feel ripped off when you get ripped off – get even
School-related parental leave does not mean you forge a note from your kid
NY: Draft model sexual harassment policy/training released
Discipline - Demote - Depart or Communicate - Counsel - Channel
ICE audits II – FAQs to make you wiser
Round up stew: sick leave, harassment, non-compete, etc.
Identifying trade secrets does not mean figuring out how to barter better
ICE audits have nothing to do with freezer police
Being at work full time is not an essential function of a job?
List 10 up: Positive employee relations training: reap the benefits of engagement
Employment agreements – what to do before you do
Background checks of the future are continuous
Treating service animal requests (always treat the animal)
Prepare for saying "No" – you need to decide how to refuse service
List 10 up: What's the deal with employee handbook rules?
I cannot tell a lie . . . you're fired for cutting down the cherry tree
Milk Stork delivers for working mom's and their baby
Job tasks and essential functions under the ADA
Who are you? Why are you here? Personality testing?
No, you can't sleep on the job
Technology driving the hiring process
Should you give your employees a little Slack – or do they have enough already?
"We need to talk" isn't any easier to say than to hear
Bet employers must make: call and raise your minimum wage
Zero tolerance for "zero tolerance" policies
Ralph Waldo Emerson as a productivity consultant
PS: PTSD IRL*
Is the employee "disabled" under the ADA?
The six step DOL audit polka
PTO on the house!
New rules for work rules
Dr. Strangelabor or: How I Learned to Stop Worrying and Love the Millennial
Did Bartleby the scrivener write his own job description?
"Treating" disgruntled or bad behaving employees
Hiring under the age of 18
DO NOT LICK THE BRAIN! and other obvious stuff
Helping your employees save for emergencies
Right to bare arms in the workplace
#MeToo quiz
Under standing desks
How to approach an employee showing signs of cognitive decline
Dress codes should not be encoded
Foul language *
Rorschach, Horshack and Abednego
Don't ask a woman the gender of her child, especially. . .
Guidelines for a valid no-solicitation/no-distribution policy
All aboard the Love Train for long-term onboarding!
Gender and workplace bathrooms
No FMLA for pet's death
Personal hygiene in the workplace
Yes Virginia, there is a St. Patrick's Day in Ireland
Master the modern method for managing March Madness
Drug testing in The Office
Background checks
"Thank you" and "I'm sorry" – meaningful, simple and impactful
Michael Corleone HR tip for the day
S'not flu or it is, doesn't matter
Be prepared for ICE raids
Looking for employees: an untapped source of talent
Calling Dr. Love(less)
Non-exempt employees – what counts as wages?
HR is not a happy accident
Do new hires have to be a culture club fit?
Remote workers and telecommuting
When former employees ask for references
Model written lock out/tag out program
Wrong table cat
They might be giants . . . transforming healthcare?
Conducting internal I-9 audits
The Nebraska Chamber has issued a W-2 challenge to state taxpayers
The impact of super bowl(ing)
12 steps to handling violence in the workplace
Workplace retaliation: don't give in to the Dark Side
Would you really want to work with a bunch of yous?
What is the ADA?
Monty Python should not write your job descriptions
FMLA definitions
Unemployed or wear a bra – are those the only choices?
What "government shutdown" means for employers
An intern by any other name
FMLA - "leave" as in "leave the employee alone"
 “M,” “F,” Or “X”? Nonbinary Gender Designations in the Workplace
Sexual harassment – can't find it – what now?
Probationary periods
Employee contracts
Introverts
How to treat fringe benefits for employees
Attendance policies
Different repeal
Temporary and leased employees
Birthdays in the workplace
Needy employees
Holiday parties - acknowledge, avoid, assume (nothing)
Dress codes: who, what, wear
Punch clock
Nepotism: favoring relatives and friends in the workplace
Year-end performance reviews
Hiring interviews
The Form I-9 has changed… Again!
Service dogs at work
Bring your own gun
Social media
Year-end or holiday incentives
Arizona sick day policy
Paternity leave
HRsimple spotlight - Fiona Ong
Permissible post-accident drug testing
Paid family leave: a growing trend
Politics in the workplace: how to remain legally compliant during election season
Termination Series: Communicating the reason for discharge
It’s only a matter of overtime
Interview with attorneys at Kastner Westman & Wilkins
Valentine's Day heartaches around the office
Safety and health tips
Wearable technology
Favorite HR sites
Back to school time is here!
Vacation policies and time off
Interview with author J. Hagood Tighe
Non-compete agreements
Workplace romance
Holidays
Bullying in the workplace
Employment references
Telecommuting or remote (control) workers
Social media and employment
Performance evaluations
Breaktimes
Interview with attorneys at Wilson Worley PC
Interview with attorneys at Knudsen Law Firm
Interview with Kathy Speaker MacNett
Firing, a job to do right the first time
Job advertisement do’s and don’ts
Employee handbooks – getting a handle on your policies
Technology in the workplace
Interview questions: do's and don'ts
Employee personnel files