[authors: Kraig J. Marton, Esq. and Jerrie Martinez-Palombo, M.Ed., SPHR]

In a speech to the US House of Representatives, Secretary of Home Land Security, Janet Napolitano, stated that since 2009, Immigration and Customs Enforcement (“ICE”), has conducted more than 6,000 audits of employers for I-9 compliance and levied fines to non-compliant employers of more than $76 million! 

The Immigration Reform and Control Act of 1986 (“IRCA”) makes it unlawful for employers to hire undocumented workers.  In decades past, employment raids were conducted and resulted in the arrests and deportation of undocumented workers.  However, based on the concept that employment drives illegal immigration, the Obama administration launched aggressive enforcement against employers who hired undocumented workers.  I-9 audits serve as a tool for discovering undocumented workers.  Since 2008, I-9 audits have increased by more than 375%.

Three different government entities have the authority to conduct I-9 audits. However, the majority of I-9 audits are conducted by ICE. In 2012, ICE has stated that they intend to conduct 3,000 Form I-9 audits. Unsuspecting employers will receive a Notice of Inspection, giving them “at least three days” to produce the requested I-9 documents.

 8 CFR §274a.2(b)(2)(ii).

If your company receives a Notice of Inspection, the Department of Justice, (“DOJ”) provides guidance to you and has identified best practices for employers during an I-9 audit.

  The DOJ recommends that employers do the following:

• Develop a transparent process for interacting with employees during the audit, which includes informing employees that the company is being audited.
• Provide all employees with I-9 discrepancies the same amount of time to correct any deficiencies, without regard to their national origin or citizenship.
• If employees are represented by a union, review the collective bargaining agreement to see if the company has any additional responsibilities or obligations during the audit.
• If you seek additional information from certain employees, provide them a letter that details what type of documentation is needed and why. Additionally, provide them with a list of acceptable I-9 documents and the anti-discrimination notice, which is the back page of the I-9 form.

During the audit, the DOJ stresses that employers should NOT:

• Selectively verify employment eligibility of employees based on their national origin or citizenship
• Terminate or suspend employees without providing them with an opportunity to correct any I-9 deficiencies
• Limit the range of eligibility documents that employees are allowed to submit for the Form I-9.

Source: http://www.justice.gov/crt/about/osc/pdf/publications/worksite_enforcement.pdf

Employers should not be fooled into thinking that the I-9 auditor is harmless. Auditors are trained to scrutinize company documents and practices and gather evidence of wrongdoing to prepare a case against the employer.  Even if employers have not hired unauthorized workers, they can still be fined for not complying with I-9 recordkeeping requirements. In 2010, retailer, Abercrombie & Fitch, paid over $1 million when ICE discovered their electronic system for completing and storing I-9s did not meet legal requirements.

It is important that employers cooperate with the investigation.  However, it should be tempered with balancing of audit compliance with being too forthcoming and unnecessarily divulging too much information to the auditor.  Anything that is said about employer practices, even if it seems benign, is often documented. It is recommended that companies facing an audit identify one or two key personnel to interact with the auditor.  The designated employees can provide the auditor with requested documents within the requisite time frames.

The best piece of advice for employers is to do their best to comply with I-9 regulations prior to receiving a Notice of Inspection.   Employers are encouraged to annually conduct an internal I-9 audits or have an experienced I-9 auditor periodically review your I-9 files.

Information about recordkeeping, compliance and penalties can be found at uscis.gov.  The link to I-9 Home central is: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=84c267ee5cb38210VgnVCM100000082ca60aRCRD&vgnextchannel=84c267ee5cb38210VgnVCM100000082ca60aRCRD.

While diligence and good recordkeeping are business best practice, in the event that you receive a Notice of Inspection, it is wise to seek legal counsel prior to the audit.

About the authors: Kraig J. Marton is an employment attorney that heads the employment law department at the Phoenix law firm of Jaburg Wilk.  He assists employers in compliance with Arizona labor laws. Kraig can be reached at kjm@jaburgwilk.com or 602.248.1017. Jerrie Martinez-Palombo, is an HR professional with experience in legal, medical and construction industries. She is SPHR certified and has a MA in Education with a Human Relations emphasis.

This article is not intended to provide legal advice and only relates to Arizona law. It does not consider the scope of laws in states other than Arizona.  Always consult an attorney for legal advice for your particular situation.  This policy is written based on Arizona law for Arizona employers.