As employers know, failing to comply with I-9 requirements can lead to fines, the loss of federal funding, even criminal sanctions against employers and, as we discussed at this year’s Employment Law Conference, their individual supervisors, HR staff, and executives. The takeaway point is that you must be proactive about I-9 compliance and consider working with us to conduct an internal audit now before ICE knocks on your door. As we discuss below, an internal I-9 audit and I-9 training for your key employees does not need to be difficult or time consuming. 

Immigration and Customs Enforcement (ICE) has been busy over the last few months, and the developments are not positive for immigrants, employers or their employees. On March 13, President Obama ordered the Department of Homeland Security (DHS) to review its deportation practices, acknowledging the toll that record-high deportation rates are taking on local communities, including employers. A White House statement issued later that day read, “The president emphasized his deep concern about the pain too many families feel from the separation that comes from our broken immigration system.” Late last month, though, the administration reached a record 2 million deportations, already the highest number in history for a single administration (with almost two years yet to go). 

Early 2014 also brought a new report from ICE’s Inspector General’s office entitled “U.S. Immigration and Customs Enforcement’s Worksite Enforcement Administrative Inspection Process.” The audit’s purpose was to determine whether ICE was meeting the directives in the 1986 Immigration Reform and Control Act for enforcing compliance with employer I-9 requirements. Despite an increase in fines from just $1.03 million in 2009 to $12.72 million in 2012, the report concluded that ICE had not done so because of inconsistencies in its enforcement policies. The report explained that ICE field offices will initiate worksite investigations when they receive complaints through a tip line or through targeting specific industries. ICE then issues an administrative inspection by serving employers with notices of inspection compelling the employer to produce I-9 forms for review. 

The Inspector General’s report offered ICE officials three specific recommendations designed to improve worksite enforcement strategy and strengthen its fine and audit procedures:

• Enforce oversight procedures to ensure consistent application of the worksite enforcement strategy administrative inspection process nationwide;
• Develop a process to evaluate the effectiveness of the inspection process and modify the process based on the evaluation; and
• Direct Homeland Security Investigations field offices to provide consistent, accurate, and timely reporting of information on worksite administrative inspections.

Employers should note the report’s strong recommendation for a uniform, nationwide enforcement process. The report roundly criticized ICE field offices for exercising discretion by issuing warnings rather than fines and for allowing significant reductions in fines levied. This most recent activity continues the approach that ICE has been taking toward the employment of undocumented workers over the past few years. In FY2012, ICE audited more than 3,000 companies and imposed criminal and civil fines against companies across a range of industries, from technology companies to service companies to food processors and manufacturers.

Employer Insights

Regardless of whether ICE ultimately accepts all three recommendations, the Obama administration’s unprecedented deportation rates and intensified efforts to target employers and impose tough penalties will likely continue, particularly with the dual pressures of the 2014 mid-term election and proposed immigration reform. Employers should ensure that they are regularly conducting proper Form I-9 internal review procedures and taking steps—both with audits and in training—to avoid the anticipated harsher penalties. Our recent experiences assisting clients with I-9 audits have shown that even the most well-meaning and sophisticated employers (including those with completely legal workforces) get hit with significant fines simply due to technical non-compliance of their I-9 requirements. Be proactive about I-9 compliance and consider conducting an internal audit now before ICE knocks on your door.

Why audit and train now?

• Avoid potential and significant fines: up to $1100 for each I-9 or employee for even simple technical violations—even with a 100% legal workforce; fines are significantly higher for more substantive I-9 violations; and higher still (up to $16,000) for knowingly employing unauthorized workers
• Minimize the chances for potential criminal liability for owners, executives, and supervisors
• Prepare and be ready for possible ICE audit as a result of their increased enforcement and audit activity
• Reduce the technical problems that ICE will more than likely find (and they almost always find problems)
• Take action to remedy the technical problems with your I-9 forms and, more importantly, any questions about an employee’s legal right to work on your own time, rather than ICE’s
• Identify and remedy I-9 process and/or procedure issues to avoid future problems
• Identify deficiencies that can be addressed with additional training

Finally, an internal I-9 audit and I-9 training for your key employees does not need to be difficult or time consuming. Even with a representative sample—sometimes just 10 to 20 percent (or 20 to 25 forms) depending on the total size of your workforce—of current employee I-9 forms, we can review the forms, identify any potential issues, and provide a recommendation in terms of next steps based upon the volume and type of problems uncovered. In our experience, conducting an internal audit has always resulted in savings for employers compared to the potential fines that they would have otherwise faced. Training your employees to catch potential problems and fill out I-9s correctly only takes an hour or two, whether in person or through a webinar.