I-9 Compliance and Audits

The Department of Homeland Security’s “Employment Eligibility Verification” form, more commonly known as “Form I-9”, is a compliance document that every employer must process for workers in the United States.  According to ICE, the purpose of this form is to “help protect jobs for U.S. citizens and others who are lawfully employed, eliminate unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.”

In 2018, Immigration and Customs Enforcement (ICE) increased site visits and I-9 compliance audits by more than 400%.  Employers who receive a Notice of Inspection (NOI) have just three business days to provide their employees’ Form I-9s.  Failure to comply with I-9 laws is likely to result in civil fines and, perhaps, criminal charges.

While media often focuses on cases involving large companies, small companies are not immune to audits and fines.  A “mom and pop” bakery in Texas was audited and found out the hard way just how costly non-compliance can be.   The company was found to have 32 substantive violations, and argued that they were not at fault for them for various reasons.  The administrative law judge who was assigned to the case dismissed the bakery’s arguments based on precedent set forth in other case decisions.  Ultimately, ICE’s auditors sought fines totaling $30,574.50, which a review panel lowered to $14,600.  Though the fine was significantly reduced, that is no slap on the wrist for a small company.

So what does all of this mean for your small business?  Ask yourself these questions:

  • “Do I know how to proceed if served with a Notice of Inspection?”
  • “If an employee has an I-9 question, am I sure that I can provide him or her with an accurate answer?”
  • “Can I identify mistakes on the form and correct them?”
  • “What are the time limits on starting and finishing the I-9 verification process?”
  • “If I fail an ICE audit, am I prepared for likely civil fines and criminal charges?”
  • “Is it worth the risk to not hire a professional to review my I-9 forms and process?”

If you are unsure about your current employment verification practices, hire an HR consultant who performs I-9 audits.   Your consultant will review your existing forms, make recommendations for correcting them, and create a plan to ensure that your process is aligned with the law.