ICE Revisits Past I-9 Offenders With New Round Of Audits
In the past few weeks, Immigration and Customs Enforcement (ICE) has initiated a new round of I-9 investigations targeting employers who have been cited for I-9 violations in the past 3 years. Audit notices have been sent to about five thousand such employers requesting review of all new I-9s as well as previously audited I-9s. These records will be reviewed to make sure that past violations have been corrected and have not been repeated in newly completed I-9s.Employers may be charged with treble damages when they are found to have continuing I-9 errors from their initial audits, and/or to have committed the same errors again on recently prepared I-9s. ICE investigations under the Obama Administration, although less dramatic than the well-publicized raids under the Bush Administration, where undocumented workers were lined up, arrested and eventually deported, are no less troublesome and disruptive for employers. Often these "silent" raids like their predecessors also result in the identification of suspect documents and illegal immigrant workers.

During the audit, ICE will review all I-9s for technical and substantive violations as well as verify the immigration/citizenship status of all workers. If a worker turns out to be an illegal immigrant, he/she must be terminated from employment, or the employer will face criminal and civil penalties for continuing to employ an illegal immigrant worker after learning of his/her status. The significant increase in fines that may be levied in a re-audit situation is a strong motivator for ICE agents, so employers should be wary of ICE officers who seem helpful, and who sometimes even discourage employers from correcting technical I-9 violations.To avoid initial or repeat I-9 penalties, employers need to take steps to ensure their I-9 compliance system is solid. Specifically, employers who have been audited, should ensure that all required corrections were made; suspect documents were investigated, and any illegal immigrants removed from employment. These employers should also conduct a self-audit on all I-9s created after the ICE audit. Continuing and common reoccurring violations should be quickly corrected and addressed through training of staff and reediting of the forms to ensure that corrections were done properly. Employers who have not yet been audited, should review all I-9 policies and procedures to ensure they are up to date with all of the latest guidance from USCIS and the Department of Justice. Personnel tasked with I-9 completion should be re-trained in light of the numerous changes to I-9 policy guidance from USCIS as well as to the list of acceptable documents.

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