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ICE to Establish I-9 Center and Increase Employer Audits

A Wall Street Journal article, Crackdown on Illegal Workers Grows, reports that Immigration Customs and Enforcement (ICE) will open a new “Employment Compliance Inspection Center” to handle an increase in I-9 audits of employers of all sizes, including large, major employers. Under the Bush administration, ICE focused on rounding up undocumented workers through surprise raids. By contrast, the Obama administration is conducting stealth, “silent” audits of employer documents. Where false documents or unverified documents are revealed, or no I-9s are prepared at all, employers are liable for paperwork violations as well as “knowingly” hiring unauthorized workers. Undocumented workers discovered during the process are often fired and may be pressured to become witnesses against the employer. Naturally, employers are thought to be the lure for illegal immigration.

Last fiscal year ending September 30, 2010, 2,740 companies were audited by ICE and $7 million in civil fines were levied on businesses that employed illegal workers. This represents a substantial increase than in past years. Now ICE really means business as it ramps up its operations even more.

To help employers, the government recently released a new version of its Guide for Employers (M-274) discussed in an earlier post. It is a good idea for employers to review ICE’s range of and type penalties to better understand the potential for liabilities. ALL employers are required to complete form I-9s for employees hired, recruited or referred for a fee after November 4, 1986, including U.S. citizens.

Doing a self-audit of I-9s, such as by in-house H.R. professionals or company executives is probably not a good idea. It is recommended that employers use third party auditors or attorneys to conduct an in-house I-9 audit before ICE comes knocking on your door (or sends a three-day notice of inspection). Our firm has had calls by employers who simply want to put our name down as a third party auditor in a subcontract with the potential client’s contracting firm in case of an ICE audit. We generally oppose this unless the company first hires us to do a complete private audit in order to get to know the company, the key personnel devoted to I-9 compliance, its operations and workforce with plenty of time to review all I-9s and related documents. We also provide training for the staff that will handle the I-9 process. This saves time if the client later gets a notice of audit or inspection. It would otherwise be too stressful to put together a plan, make corrections, if allowed, in only three days.

Here are some other reasons why it is not a good idea to do a self-audit, based in part on how ICE goes about determining what activities are worth penalizing as technical violations or “knowing hire” violations that carry stiffer penalties. Common mistakes employers make doing self-audits without professional help include:
– changing I-9 forms without initialing and dating the forms – redoing forms and tossing out rather than saving the originals -making copies of work authorization documents but somehow separating them from the I-9 form -backdating forms or information as if they were properly completed on an earlier date when they should have been completed.
– other types of cover ups for prior mistakes, even if innocent, that can be construed by ICE as falsifying documents, fraud or some other serious offense – mistakes and corrections can affect the statute of limitations for various types of violations -business practices that demand certain documents for work verification over others or demanding certain documents from one type of employee and other documents from other employees can lead to charges of employment discrimination.

As I mentioned in an earlier post on ICE’s I-9 audit history, such a simple form has created much aggravation and cost several employers lots of money. A recent stakeholder meeting about making the I-9 form simpler to use resulted in pages of recommendations from many employers and organizations for detailed changes to the form. Such a simple appearing matter can become very costly to employers.