What is an I-9 Audit?
The Difference Between I-9 Audit and E-Verify
Many people are familiar with E-Verify, a program within the Department of Homeland Security (DHS) that verifies an employee’s eligibility to work in the United States. The E-Verify program doesn’t verify citizenship or resident status and can only be used for new hires, not on current employees or past employees. The exception to this is if an employer has a new contract with a state or federal entity, then all workers, whether current or new hires, must submit to E-Verify if the employees are involved in the work relating to the new contract.
Because E-Verify can only be used on new hires, ICE (U.S. Immigration and Customs Enforcement) conducts audits on employers around the country and reviews I-9 forms. These I-9 audits make it possible for ICE to audit an employer's current employees as well as past employees.
What is an I-9 Form?
Form I-9 is what most people fill out on the first day of a new job. It requires the employer to verify a person’s identity and verify that an employee is authorized to work in the United States. Most of us hand over our driver’s license (identity) and social security card (work authorization). Form I-9 can be found here.
The Department of Homeland Security indicates that Form I-9 must be retained by the employer for a period of three years or one year after the date employment ends, whichever is later.
Basically, employers need to retain Form I-9 for at least three years AFTER the employee-employer relationship is terminated.
Form I-9 is not submitted to any government agency to verify that the documents given to the employer are not false or stolen. It is the employer’s responsibility to review all the documents and determine if the documents are legitimate.
ICE states: Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity and employment eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.
How does ICE decide which employers to audit?
ICE determines which employers to audit by leads and tips. These leads and tips often come from an employee within the company. ICE also indicates that “other investigational means” are used to determine which employers are audited.
What is the procedure for an I-9 audit?
Once ICE determines which employers to audit, NOIs (Notice of Inspection) are either mailed to employers or hand delivered to employers by ICE agents. Sometimes armed ICE agents will enter the employer’s place of business and serve the employers in person.
In addition to I-9 forms, ICE agents are able to request and inspect payroll records and other accounting information and/or methods in order to obtain an accurate list of employees. I-9 forms are checked against the DHS databases.
After inspecting documents, employers may be given an NOSD (Notice of Suspect Documents), a list of employees whose identity and/or work authorization doesn’t match up with the DHS databases.
The NOSD may also list employees who do not have authorization to work in the U.S. When this occurs, employers are notified that if the employee continues to work, the employer is subject to fines and/or prosecution.
Possible fines associated with I-9 audits:
Employers may receive an NOIF (Notice of Intent to Fine).
Employers can be fined for not retaining I-9 forms on current and past employees.
Employers can also be fined for typos on I-9s. These paperwork fines can range from $100 to $1100, per I-9.
If ICE has determined that an employer knowingly hired employees who are not authorized to work in the U.S., these fines range from $375 to $3200, per employee.
If an employer wishes to contest the fines, the employer must file a request for a hearing within 30 days of receiving an NOIF; otherwise, the NOIF becomes the final order.
Because the fines can amount to large fortunes, it is sometimes advisable for employers to contact an attorney immediately upon receiving an NOI.
In 2010, Amercrombie and Fitch paid over $1 million dollars as settlement for fines. Although it was determined that Ambercrombie and Fitch did not knowingly hire people who were unauthorized to work in the U.S., ICE did find that there were “numerous technology-related deficiencies” within the company’s electronic I-9 verification system.
Since 2009, I-9 audits have generated about $7 million dollars in fines from employers.
Deportations after I-9 audits and Worker’s Rights:
The Department of Homeland Security does state that ICE will process for removal any workers who are found to be undocumented through I-9 audits.
Workers and worker advocates can find out more information about I-9 audits and worker rights by following this link to National Immigration Law Center.