What Happens During an ICE Audit?
Here’s what to expect following a Notice of Inspection (NOI).
Since the Immigration Reform and Control Act (IRCA) was passed in 1986, employers in the United States have been required to verify candidates’ employment eligibility and continue to monitor eligibility post-hire. The federal Form I-9 was created for employers to comply with IRCA and ensure that the people they are hiring are legally authorized to work in the U.S.
To check that employers are following the process correctly, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) conduct I-9 audits, which are thorough reviews of a company’s I-9s and supporting documentation. So, what can you expect to take place during an audit should one occur?
What happens during an I-9 Audit?
During an I-9 audit or inspection, DHS or ICE will review your I-9 forms and supporting paperwork to ensure compliance.
An audit is usually triggered by one of the following situations:
- Complaints from current or former employees
- Complaints from job candidates who did not get an offer
- Allegations from competitors
- Homeland Security’s evaluation of which areas are more likely to have non-compliant employees
- Information from informants
- Information from other federal agencies (DOJ, FBI, IRS, etc.)
You’ll receive a Notice of Inspection (NOI) and then have three business days to produce the requested forms for each employee. ICE does not need a subpoena or warrant to conduct an audit and can request I-9 forms for all current employees hired after November 6, 1986, or the forms of previous employees. Businesses are currently required to keep records for employees for at least three years from the first day of employment or one year from the date employment ends, whichever is longer.
What Happens After an ICE Audit?
After ICE reviews all of your documents, they will issue one of the following notices:
- Notice of Inspection Results/Compliance Letter: Notifies you that everything is in order and you are in compliance.
- Notice of Suspect Documents: ICE has determined that your documentation indicates that you might have employees that are not eligible for employment. You may provide further documentation if you believe this is a mistake.
- Notice of Discrepancies: In this case, ICE has been unable to determine the eligibility of an employee/employees and needs further documentation.
- Notice of Technical or Procedural Failures: ICE found errors on forms, and you have at least ten business days to correct the forms, or the errors will become substantive violations. Technical errors are typically minor issues that can be corrected (they usually involve missing information in a Form I-9 field), while substantive errors or violations cannot be corrected and usually mean the employee is not eligible for employment.
- Warning Notice: ICE has found substantive verification violations, but they expect that you will correct the errors and comply moving forward. There are some exceptions to when you would not receive a Warning Notice.
- Notice of Intent to Fine (NIF): This is issued for substantive violations, uncorrected technical or procedural failures, knowingly hiring ineligible employees, and/or continuing to employ ineligible employees.
- Final Order: If you do not request a hearing in a timely manner, ICE will issue a Final Order detailing the criminal and/or civil sanctions (criminal prosecution and/or fines).
How Much Could You Be Fined After an ICE Audit?
According to ICE.gov:
“To determine the base fine amount, the number of substantive violations/uncorrected technical or procedural failures and knowingly hire/continue to employ violations will be divided by the number of Forms I-9 that should have been presented for inspection. The percentage from this calculation is the violation percentage that will determine the minimum and maximum civil penalty base fine amount. This percentage may change depending on whether the offense being evaluated is the employer’s first offense, second offense, or a third or higher offense.”
Following those calculations, ICE determines the total civil penalty fine amount by considering the following five statutory factors:
- Size of the business
- Good faith of the employer
- The seriousness of the violation(s)
- The involvement of unauthorized worker(s)
- Any history of previous violation(s))
Penalties can range from a couple hundred dollars to thousands of dollars per error. Over the last few years, there have been more audits and fines resulting from immigration reforms and increased enforcement, so it’s essential that you keep your ducks in a row when it comes to compliance of IRCA.
Unfortunately, many companies are still using outdated systems. It’s been found that 76% of paper I-9 forms have at least one fineable error — 4.1 times higher than electronic 1-9s with verification — and companies have a 95% chance of being audited by ICE within the next decade, based on current trends.
From paper form digitization to electronic I-9 form management, the best way to protect yourself and your business is by using an industry-leading I-9 management solution with an unbeaten track record for maintaining compliance.
Learn more about the importance of prioritizing I-9 management.
