Wyatt Employment Law Report

Increased ICE Activity Makes I-9 Audits Prudent Practice

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By Allison Grogan

With the current heat wave, anything “ICE”-related seems like a welcome change of pace.  However, this may not be the case where “ICE” stands for the U.S. Immigration and Customs Enforcement.  In the past decade, ICE has steadily increased its activity around the country, making audits of employers’ I-9 hiring records a common – and sometimes costly – occurrence.  In June 2011, ICE announced that it would audit 1,000 employers around theUnited States.  Though these audits will likely focus on industries known for hiring large volumes of undocumented workers, such as the construction, agriculture and hospitality industries, industries whose workers are privy to sensitive government information, such as the financial services, healthcare and transportation industries, are also particularly prone to audit.  Notwithstanding these predictions, no employer is exempt from the hiring records requirements, and as such, every employer is at risk of stiff civil and even criminal penalties should an audit reveal noncompliance.

U.S. law requires that employers complete a Form I-9 for every employee hired after 1986 within three days of the employee’s hire in order to verify such employee’s work authorization.  These forms must be retained for the duration of the employee’s employment, and for at least one year after termination. 

Though the forms are relatively simple to fill out, penalties can add up quickly for mistakes, especially for employers with numerous employees.  ICE generally provides employers with three days’ notice before initiating an I-9 audit.  Each error identified by ICE can lead to a penalty from $110 to $1,100, and where an employer is found to be knowingly employing an unauthorized worker, penalties soar to between $365 and $16,000 per occurrence.  The real danger is that, where an employee’s I-9 is lost or where an employer fails to re-verify a worker’s authorization after its expiration date, ICE assumes that the worker was undocumented, triggering stiffer penalties.

An employer can minimize the risk of penalties by performing regular audits of its I-9 records.  Audits can identify common mistakes, and allow employers to correct these mistakes to minimize penalties prior to being notified of an ICE audit.  If you have questions about completing or storing I-9 forms, the U.S. Citizenship and Immigration Service has launched ‘I-9 Central,’ at www.uscis.gov/i-9central.  I-9 Central includes information about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization.  It also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors and answers to employers’ questions about the I-9 process. 

For further guidance, contact Glen Krebs or Allison Grogan of Wyatt, Tarrant & Combs, LLP, at 859.233.2012.

Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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