New Resource: I-9 Inspection Process

It's common knowledge that the U.S. government has been performing widespread investigations and audits of employers to crack down on employment of undocumented non-citizens. Because of this, employer compliance is becoming more complex and enforcement (investigations and audits) are increasing. The days of thinking that immigration enforcement is only targeting food, textile, garment, construction companies, and the hospitality industry - are long gone. Every employer must be aware of immigration laws as they relate to the processing and management of their I-9 forms and other compliance programs.

The Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced on October 6, 2010 record-breaking immigration enforcement statistics achieved under the Obama administration, including the imposition of approximately $50 million in financial sanctions for worksite enforcement violations. While most of the emphasis was on the arrest and deportation of criminal aliens, Secretary Napolitano emphasized that the Obama Administration would continue to hold employers accountable through the use of tools like I-9 audits, fines and debarments.

Penalties from worksite enforcement inspections have increased five-fold in Fiscal Year 2010 due in large part to increased employer scrutiny and several waves of I-9 audits performed across all industries in the USA. In 2002, there were 25 criminal arrests with 485 administrative arrests for worksite enforcement. In 2008, ICE made over 1,100 criminal arrests and 5,184 administrative arrests tied directly to the enforcement of such investigations. These arrests included business owners, managers, and supervisors who were convicted of criminal offenses associated with the knowing hire of undocumented workers, Social Security fraud, money laundering, and identity theft.

While the total number of fines and penalties is a constantly moving target, here are the latest statistics from ICE as of October 2010:

• ICE criminally charged a record-breaking 180 owners, employers, managers and/or supervisors - up from 135 in FY 2008 and 114 in FY 2009.
• ICE conducted more than 2,200 I-9 audits - up from more than 1,400 in FY 2009.
• Since January 2009, ICE has imposed approximately $50 million in financial sanctions.
• ICE debarred 97 business and 49 individuals in FY 2010, up from 30 and 53, respectively, in FY 2009.

Targeting Employers

The USCIS Field Manual for Employer Sanctions sets forth guidelines for targeting employers for I-9 inspections. USCIS investigators follow leads from various public and private sources. The Department of Labor (DOL) is a favorite USCIS resource for ferreting out employers of unauthorized workers. DOL officers conduct routine inspections for employer compliance with the wage and hour laws, and advise USCIS of employer missteps. DOL will also notify USCIS of possible violations upon receipt of an application for alien labor certification if DOL suspects that the employee is presently working illegally.

USCIS has also implemented a "General Administrative Plan" whereby it targets specific industries with a reputation or history of hiring unauthorized workers, but no company is safe from the provisions of the plan, which authorizes random selection of employers for audit.

Auditing Procedures

USCIS must provide employers with at least three days' notice of its intent to conduct an I-9 inspection. This notice need not be in writing. It is not unusual for a USCIS investigator to initiate an investigation by phone or to simply appear at the employer's office. It is vitally important to contact your immigration provider immediately upon receipt of an I-9 audit.

The employer has the opportunity, as provided by USCIS regulations, to choose the location of the inspection as well as to review, and even correct, technical mistakes on the I-9s. The correction of mistakes before the actual inspection may permit the employer to mitigate the amount of the fine. However, under no circumstances should an employer destroy an I-9 that has been incorrectly completed or backdate a newly completed I-9.

At the time of the inspection, USCIS investigators will ask to see the original I-9s, employee roster of current and terminated employees, payroll records, W-2 forms and various other associated information. They will review this information for possible violations. If the I-9s are on microfiche, the employer is obligated to provide a microfiche reader-printer at the inspection site. The investigator's authority is limited to review of the requested information in the Notice of Inspection (NOI) and the Subpoena. After the inspection, USCIS will contact the employer if there are discrepancies between USCIS records and employee documentation.

Notice of Intent to Fine

At the close of the investigative phase, USCIS may issue a Notice of Intent to Fine (NIF) if it determines that a violation has occurred. The NIF will allege that an employer has violated IRCA in one of the following ways:

(a) The employer knowingly hired an unauthorized alien
(b) The employer continued to employ an unauthorized worker
(c) The I-9 records were deficient (i.e., there were paperwork violations), and/or
(d) The employer failed to provide USCIS access to the I-9 records in a timely fashion.

Upon service of the NIF, an employer has 30 days to contest the NIF and to ask for a hearing before an Administrative Law Judge (ALJ). If an ALJ rules against an employer, the employer has 45 days to file a petition in the Court of Appeals for the appropriate circuit for review of the order.

In summary, the trend toward increased scrutiny of immigration employment practices will likely continue in the foreseeable future. With the demise of immigration reform in Congress, Immigration and Customs Enforcement (ICE) is stepping up enforcement of existing laws prohibiting the employment of illegal workers. These recent developments have made it even more critical that employers maintain a strong immigration compliance profile.

Remember, the key to defending any employment related investigation is to evidence that there is and has been a consistent pattern of responsible, good faith effort on the part of the employer in establishing a compliant workforce.

We link to civil and criminal penalties for I-9 violations here.

Back to Top ^