Fiscal year 2012 (FY12) was the busiest year on record for the Immigration and Customs Enforcement (ICE) audits of employers' employment eligibility verification (I-9 forms). Beyond just the number of investigations, fines and even arrests also grew dramatically during the past three fiscal years for violations related to the requirements for employers to verify employment eligibility of their employees.
Dramatic Increase in Audits Since 2009
Company owners, human resource and compliance managers should not expect a drop in I-9 audits, even with the completion of the 2012 general elections. The Associated Press reported that since the end of the George W. Bush presidency, ICE audits of company I-9 forms have risen dramatically. In fiscal year (FY) 2007, ICE conducted only 250 audits. In FY12, ICE I-9 audits had risen to more than 3,000.
Fines and Arrests Increased Since 2009
During this same period from 2009 until 2012, fines for I-9 violations grew from $1 million to $13 million. The number of company owners, executives and managers arrested during ICE investigations increased to 238.
ICE Audits Seek to improve Employer Compliance
ICE and President Obama's Administration have been open about the purpose of the focus on I-9 audits. This purpose is finding unauthorized workers and getting employers to comply with complex I-9 regulations.
All employers must comply with the Immigration Reform and Control Act (IRCA), which introduced the Form I-9 in 1986.
Even employers who know that their workforce contains no unauthorized workers may face stiff fines for common violations. There was a stunning announcement in February 2011 that ICE had issued I-9 audit notices to up to 1,000 companies
All Industries Targeted - TX & NJ Receive Highest Fines
ICE has made a determined effort to audit companies of all sizes, across the United States and in all industries. The Associated Press (AP) reported that companies ranging from General Electric and a subsidiary of Heinz to a small Subway franchise have been fined for I-9 violations. ICE also publicized the conviction of a Dunkin' Donuts manager who knowingly hired unauthorized workers and was sentenced to house arrest. The state of Texas had the highest number of ICE workplace fines in 2011, followed by New Jersey.
Re-Verification Requirement for Temporary Workers
One important area of I-9 compliance is re-verification. Employers are responsible for re-verifying the continued employment eligibility of employees who are working under temporary approvals, such as H1B status or employment authorization documents (EADs). A well-meaning employer without a good compliance system in place can easily miss re-verification deadlines. This is just one of a number of common violations that could be identified and addressed in an internal audit.
Employer Response Upon Notice of Intent to Fine
Employers have options to defend against an ICE notice of intent to fine (NIF). Even employers who maintain I-9s, have written I-9 policies that are updated, and conduct periodic internal audits may face problems in an ICE audit due to the complexity of the I-9 requirements.
An employer who receives an NIF may appeal within stated deadlines. Employers may appeal to the U.S. Department of Justice and request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO). If ICE pursues the case after a hearing is requested, an Administrative Law Judge (ALJ) will hear the matter.