I-9 Audits

The Immigration & Customs Enforcement (ICE) has recent reported that, since 2007, employer I-9 audits have increased from 250 to more than 3,000 in 2012 alone. Audits can be random or based on a lead and articulable facts concerning the employer’s violations. We at Landau, Hess, Simon, Choi & Doebley are available not only in case the government comes calling, to represent the employer with an I-9 audit, but also to assist with an employer’s self-audit of completed I-9 forms.

The following are the best ways for an employer to prevent being prosecuted for I-9 violations:

• Always use the current edition of the I-9 form (most recently updated on March 8, 2013);
• Do not accept copies of work or identity documents;
• Make sure all new hires complete I-9s in person before a company official (in order to confirm identity) or an authorized agent (with respect to whom the employer must take full responsibility for any I-9 mistakes or omissions.);
• Engage in regular training for employees handling I-9 completion;
• Establish an I-9 routine and follow it consistently for every employee;
• Create a system for tracking dates of hire and termination of employment, for subsequent purge of the I-9 when legally permitted to do so; and
• Consider establishing policies for future compliance and ongoing voluntary audits

Employers can face stiff penalties for Immigration & Reform Control Act (IRCA) violations that include substantial fines and debarment from government contracts. Penalties can be imposed for hiring unauthorized workers as well as simply for committing paperwork violations even if all workers are authorized to work. Fines for hiring unauthorized workers will amount to anywhere from $250 to $5,500 per worker depending on the prior history of violation.

We can represent the employer with an I-9 audit, and also assist with an employer’s self-audit of completed I-9 forms

Employers can also be barred from competing for government contracts for a year if they knowingly hire or continue to employ unauthorized aliens. Paperwork violations can also result in significant fines. Each mistake or missing item on a form can result in a $100 penalty up to $1000 for each form. A missing form would automatically be assessed at $1000. An employer, for example, that had 100 employees and did not complete I-9 Forms might face a $100,000 fine. IRCA investigators have considerable discretion in assessing fines and will look at factors like the size of the company, the seriousness of the violations, whether the employer was trying to comply in good faith and the pattern of past violations.

Employers should also be cautioned that knowingly accepting fraudulent documents from employees is a different kind of violation that can be criminally prosecuted under other immigration laws.