ICE Audits - Who Should be Prepared?

In 2018 the U.S Immigration and Customs Enforcement (ICE) ramped up I-9 audits to record levels, making a significant increase on the previous year. Now a new budget and even more focus on the issue could see up to 15,000 audits opened each year. So what businesses should to be prepared to face an audit? In reality, it’s everyone, no matter what your size or industry.

The ICE is an agency of the US Federal government tasked to enforce immigration laws. They have an annual budget of approximately $6 billion primarily for three key operations; Homeland Security Investigations, Enforcement and Removal Operations and Office of the Principal Legal Advisor.

For a business the key area to consider in relation to ICE is your I-9 compliancy. Form I-9 is the ICE’s main enforcement tool, requiring employers to confirm their workers authorization to work in the US. Recently they revealed the extent of their focus on I-9 investigations and audits and in 2018 a total of 6,848 worksite investigations took place, compared to 1,691 in the same period in 2017. I-9 audits also increased - rising from 1,360 in 2017 to 5,981 in 2018. The reason for this, the ICE says, is that an increase in worksite enforcement protects jobs for U.S. citizens and other lawfully employed workers.

What is an I-9 audit?

Before an audit takes place, ICE will serve a Notice of Inspection (NOI)/subpoena requesting all I-9 forms along with supporting documents and various other documents. This could include a copy of payroll, list of current and former employees, Social Security Administration documents, IRS Form 940 and 941 employment tax documents, workers’ compensation reports, business licenses, and a list of companies that were contracted for work.

This will be done by ICE agents who will usually make an unannounced visit to the business premises and request that the documentation is produced within three business days. At this point it’s advised that you get help from an immigration legal counsel. When ICE undertake an audit, they are looking to determine whether I-9 forms comply with the law. An auditor also will check for substantive violations such as incomplete or missing forms and technical violations. Once complete, ICE will notify you of the result. Some minor violations will be given 10 days to be rectified, however, large fines can also be placed as penalties.

Make sure your team are briefed on what to do if presented with an ICE audit and they know what they can and cannot do. The main thing to remember is not to panic or make any rash decisions, and if in doubt, consult with a competent legal counsel.

How to prepare?

It’s important to have a plan in place to both prepare your business for an audit and also to make sure that you are compliant at all times. Whilst audits can be triggered, they can also be completely random, so there is no one clear cut way to determine if you are vulnerable.

To start, you should consider completing your own internal I-9 audit where you can either review all I-9 forms or a sample a random selection. This needs to be treated with extreme care, as it isn’t uncommon for enquiries into I-9’s to trigger claims of discrimination. The key to avoiding this ensuring that any I-9 selection is at random and the process of reviewing is duplicated from state to state. Every employee must be treated the same.

If you complete an audit and become aware of any potential I-9 issues, it is important that these are corrected compliantly. For example, if any of the employee details are incorrect, these must be updated and corrected by the employee - no other member of staff can carry this out on their behalf.

In the unfortunate circumstance you learn that an employee is undocumented, it is required by law that the employee is terminated. You can look to support this worker by introducing a lawyer that they can speak with confidentially and get advice on their situation. You can also refer them to free advice and nonprofits such as American Immigration Counsel.

If you’d like to talk through any of these points with one of our team, get in touch here!

Disclaimer: All information written here is for general informational purposes only and is not intended to be a substitute for professional and/or legal services.