In the realm of U.S. employment, every employer must maintain a lawful and ethical workforce. This obligation is highlighted by the recently revised Form I-9, introduced in August 2023. While this update aims to streamline procedures, it also emphasizes compliance with the Immigration Reform and Control Act (IRCA).

However, in the wake of these changes, the ongoing possibility of an Immigration and Customs Enforcement (ICE) audit emerges, leaving even the most diligent employers asking: Am I prepared?

This blog aims to break down the details of Form I-9 compliance, providing insights into navigating ICE audits with assurance and proactively safeguarding your business from potential penalties.

I-9 Inspections: Understanding the Risks and Avoiding Penalties

Immigration and Customs Enforcement conducts I-9 inspections to ensure employers comply with their obligation to verify the employment eligibility of all new hires. Complaints, random selection, or as part of a larger investigation can trigger these inspections.

What to Expect During an I-9 Inspection

ICE agents will request to review your company's I-9 forms for all current employees. They will be looking for both technical and substantive violations.

Technical Violations:

• Missing or incomplete information: Any blank fields or missing sections on the form.
• Incorrect dates: Dates that don't correspond with the employee's hiring date or document expiration date.
• Unauthorized documents: Accepting documents not listed on the Form I-9 Acceptable Documents List.
• Improper signatures: Missing signatures or signatures that do not match the employee's identification.

Substantive Violations :

• Hiring or continuing to employ unauthorized workers: Knowingly employing someone not authorized to work in the United States.
• Document fraud: Accepting fraudulent documents to verify an employee's identity or eligibility.
• Pattern or practice of discrimination: Intentionally discriminating against certain groups of employees when verifying their employment eligibility.

Penalties for I-9 Violations

While many strive for meticulous compliance, ICE audits remain a reality for many businesses. In 2022 alone, ICE conducted over 3,400 worksite investigations, resulting in nearly 18,000 fines totalling over $30 million. Even a single clerical error on a Form I-9 can carry hefty penalties, ranging from $239 to $2,133 per violation. Worse, willful violations can lead to criminal charges and even business closure. Recent statistics from the Department of Justice (DOJ), effective as of January 30, 2023, further highlight the potential financial risks:  

Unlawful Employment of Noncitizens

• First Offense: Fines range from $676 to $5,404 per unauthorized worker.
• Second Offense: Fines escalate from $5,404 to $13,508 per unauthorized worker.
• Subsequent Offenses: Penalties can soar to a staggering $8,106 to $27,018 per unauthorized worker.

Paperwork Violations

Even seemingly minor errors can carry fines between $272 and $2,701 per relevant individual. These figures paint a stark reality: failing to maintain thorough I-9 compliance can inflict a severe financial blow to your business.

Ten Tips for Tackling ICE Audits with Confidence

1. Understand the Revised Form I-9: Familiarize yourself with the updated instructions and layout. Be aware of new List B documents, such as enhanced driver's licenses, and identify any changes in acceptable combinations.

Note: Ignorance of new procedures or acceptable documents can lead to errors and potential fines. Staying updated demonstrates due diligence.

2. Implement a Robust I-9 Completion Process: Train your human resources team on proper completion procedures, emphasizing the importance of reviewing original documents, not copies. Consider utilizing electronic I-9 systems for efficient document storage and retrieval.

Note: Improper completion can result in rejected forms, missed eligibility discrepancies, and legal consequences.  

3. Conduct Internal Audits Regularly: Proactive I-9 audits by a qualified internal team can identify and rectify errors before an ICE visit. Ignoring internal discrepancies invites bigger problems during ICE audits.

Note: Proactive audits catch errors early, minimizing fines and demonstrating proactive compliance.  

4. Maintain a Secure Document Retention System: Store completed I-9 forms securely for the required period (three years from hire or one year after termination, whichever is longer). Ensure accessibility while safeguarding employee privacy.

Note: Secure storage protects employee privacy and ensures accessibility for audits. Inadequate storage risks document loss, hinders retrievability, and potentially violates privacy laws.

5. Designate an ICE Audit Point Person: Appoint a knowledgeable point person to liaise with ICE agents during an audit. This individual should be well-versed in audit procedures and company policies.

Note: The absence of a designated person often creates chaos and potentially undermines cooperation.

6. Gather Requested Documents Promptly: Be prepared to present requested documents efficiently, including payroll records, articles of incorporation, and employee I-9 files. Organize files beforehand for swift retrieval.

Note: Efficient document retrieval shows professionalism and cooperation. Delays or missing documents raise red flags and can prolong the audit, incurring unnecessary costs.

7. Remain Calm and Cooperative: Cooperate fully with ICE agents while maintaining a professional demeanor. Answer questions truthfully and avoid speculation or defensiveness. Hostility or defensiveness can escalate the situation and potentially lead to increased scrutiny.

8. Know Your Rights: Understand your legal rights during the audit. You have the right to consult with an attorney before answering any questions. Lack of knowledge can jeopardize your rights and company interests.

9. Document the Audit Process: Maintain detailed notes of the audit, including the date, time, personnel involved, and any requests made by ICE agents. These are valuable for future reference and potential legal proceedings.  

10. Seek Legal Counsel When Necessary: If you encounter concerns or complexities during the audit, don't hesitate to seek legal counsel from an experienced immigration attorney. Their expertise can protect your interests and ensure compliance.  

Bonus Tip: Stay informed about ICE audit trends and updates. Subscribe to ICE newsletters and attend relevant workshops to be ahead of the curve and adapt your strategies accordingly.

By following these tips and actively maintaining compliance, you can confidently approach ICE audits, knowing you've taken the necessary steps to protect your business and employees. Remember, preparation is key!

Final Thoughts

Preparing for an ICE audit with the revised Form I-9 can seem daunting, but it doesn't have to be. You can confidently navigate this process by being proactive, informed, and compliant. Implementing these ten tips will strengthen your defenses, minimize potential penalties, and demonstrate your commitment to maintaining a legal and ethical workforce.  
For those who find the I-9 audit process overwhelming, seeking assistance from a third-party auditor is a viable option. OnBlick can guide with I-9 internal audits, helping organizations easily navigate the complexities. Selecting the right compliance partner, whether internal or external, is crucial to dispelling the fear of non-compliance and fostering a secure and compliant work environment.