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Feds Seek to Inspect Company I9 Forms

July 29, 2019
Employers should be aware of a major new enforcement initiative by the Immigration and Customs Enforcement (ICE) division of US Citizenship and Immigration Services (USIS). ICE in recent months has sent more than 3,300 I-9 related Notices of Inspection (NOI), with a long-term intent to send out more than 5,000 NOIs.
An NOI is the start of the inspection process of reviewing a company’s Form I-9s to determine whether they are properly prepared under existing law.  
Your company receives a NOI
Notice of an ICE I-9 audit generally commences under one of the following two circumstances: 
  1. An ICE auditor and/or agent comes to a business to serve the NOI. The ICE agent will ask to see a manager, or the I-9 person (i.e. likely human resources); or 
  2. Certified U.S. mail, return receipt requested. When the letter comes in the mail, make sure that the person that receives and opens the mail knows to get it to the proper person in your company immediately. This is crucial, especially in the summer when key people with I-9 responsibility may be away on vacation. 
Once received, an employer has three business days to respond to the NOI (though extensions may be granted for good cause). Like any correspondence from the federal government, this letter should be taken very seriously. 
Why me? 
A company may receive a NOI for any number of reasons. The company may operate in a frequently targeted industry such as services, restaurants and hospitality, construction, retail, production and packaging, landscaping, maintenance, and manufacturing.  Or a competitor, disgruntled employee or former employee, may have sent ICE a tip to investigate. 
The NOI process requires that employers provide ICE the I-9s for each active employee hired after November 7, 1986 and for those employees who separated from employment within the I-9 retention periods. The I-9 retention periods for former employees are:
  • Three years after the date of hire or 
  • One year after the date separation, whichever is later. 
What to do during the three-day response period?
Once the company receives the NOI, get busy.
Review all existing I-9s to ensure you have them. (This is the reason to keep I-9s segregated from other personnel files). If they can’t be found, take steps to have existing employees complete a new I-9 and make a note as to what happened. If there are partially completed I-9s, take steps to have the employees correct their information.  
Prepare employee lists, payroll, E-Verify and Social Security no-match information (if applicable), company information and staffing agency/contractor information. Make sure the information is well prepared and organized.
How to get ahead of this?
Do an internal audit to determine your deficiencies now, before a NOI comes. Depending on the number of employees in the company, it may be easier to review a sample of I-9s to discover their quality before embarking on a full audit.
Once discovered, any shortcomings must be corrected. Don’t forget , section 1 is the responsibility of the employee, sections 2 and 3 are the employer’s responsibility. Possible corrections may include incomplete fields in section 1 or missing documents or too many documents in section 2. 
Prepare for your own audit by making sure to review the I-9 directions to ensure what a proper I-9 looks like.  Doing this in advance will reduce fines and penalties and provide a company with a good-faith defense if and when the audit comes.
Centralize the I-9 preparation process in human resources to ensure it is done correctly. The USCIS has a useful website   replete with resources for employers to use to prepare for an audit.
One open question for a company is whether or not to make copies of the I-9 identification documents.
The law is silent on this issue so each employer has to make its own decision. In public events, ICE has urged employers to keep copies but your legal counsel may offer contrary advice.
If your company decides to change its practice, draw a bright line between the two practices (perhaps through a memo to file) and follow the practice consistently after it has changed.
What’s my risk?  
Significant. Failing to properly fill out and/or complete an I-9 within the required time frames can lead to fines of $230 – $2,292 per I-9. Employing an undocumented worker can cost an employer anywhere from $573 – $22,927 per employee. 
Other consequences include:
  • expanded use of civil penalties,
  • recurring audits,
  • debarment, and 
  • criminal prosecution of employers who knowingly break the law.
AIM members with questions about this or any other HR-related issue may call the AIM Employer Hotline at 1-800-470-6277.
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