ICE I-9 Audit Questions and Answers with Attorney Nick Oberheiden

Under the federal Immigration Reform and Control Act (IRCA), all U.S. employers are required to verify the "identity and employment authorization" of their employees. The means for doing so is through the completion of Form I-9, which is published by U.S. Citizenship and Immigration Services (USCIS), an agency within the U.S. Department of Homeland Security (DHS). Another DHS agency, U.S. Immigration and Customs Enforcement (ICE), enforces employers' I-9 requirements by conducting audits (or "inspections") and seeking civil and criminal penalties for employers' violations.

For employers, ICE I-9 audits can present very real risks. Even unknowing violations can lead to civil enforcement action, while allegations of intentionally hiring undocumented workers can lead to criminal prosecution by the U.S. Department of Justice (DOJ). With this in mind, employers need to have a clear understanding of their obligations under IRCA and the ICE I-9 audit process. Here, federal compliance and defense attorney Nick Oberheiden, PhD provides an overview of what employers need to know:

Question 1: What Triggers an ICE I-9 Audit?

Dr. Oberheiden: There are two main factors that can trigger an I-9 audit by U.S. Immigration and Customs Enforcement. The first of these factors is ICE's sampling and analysis of employer I-9 reporting data. ICE personnel routinely example employers' I-9 filings for outliers and other red flags; and, if trends in the data suggest that a particular employer may not be fully complying with IRCA, then ICE can initiate an audit independently.

The second main factor that can trigger an ICE I-9 audit is a complaint (or multiple complaints) from a disgruntled employee (or multiple disgruntled employees). Current employees will often file complaints with ICE alleging that their employers are not complying with the law, and former employees who believe that they were not properly compensated may file complaints with ICE as well.

While ICE targets companies in all industries for IRCA enforcement, companies in industries that have traditionally employed large numbers of undocumented workers are particularly at risk for facing ICE I-9 audits. ICE pays particular attention to the data coming in from employers in these industries, and it initiates a higher volume of audits in these industries in an effort to crack down on the large-scale employment of foreign nationals who are not authorized to work in the United States.

Question 2: Why are ICE I-9 Audits on the Rise?

Dr. Oberheiden: In recent years, U.S. Immigration and Customs Enforcement has dramatically increased its volume of I-9 audits targeting employers across all industry sectors. The reason for this is simply that ICE, in conjunction with DHS on a broader scale, is cracking down on the employment of undocumented workers and other immigration-related statutory violations.

The decision to enhance efforts to enforce IRCA and other federal immigration statutes can be traced back to President Trump's "Buy American and Hire American" Executive Order, which the White House issued on April 18, 2017. In pertinent party, the Executive Order states:

"In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5))."

However, the reasoning behind the increase in ICE enforcement efforts targeting U.S. employers is less important than the fact of the increase itself. ICE is aggressively targeting employers across the country in I-9 audits, and this means that employers nationwide need to be prepared to demonstrate their compliance.

Question 3: What are the I-9 Requirements for U.S. Employers?

Dr. Oberheiden: Under IRCA, all employers are required to verify the identity and employment eligibility of prospective employees before they hire them. Under 8 C.F.R. § 274a.2, the Employment Eligibility Verification Form I-9 (Form I-9) is designated as the exclusive means of performing this verification. Employers must have their current employees' I-9 forms on hand at all times, and they must retain former employees' I-9 forms for a minimum of three years from the date of hire or one year from the date of termination, whichever is longer.

The I-9 form has separate sections that must be completed by employees and employers. Among other requirements, employees must attest to their employment authorization. More importantly for employers, however, is the requirement for employers to, "examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the Form I-9."

In other words, employers cannot take their employees' attestations as to their employment authorization for granted. As a result, in order to demonstrate compliance with IRCA, employers must not only maintain their employees' I-9 forms, but they must maintain adequate supporting documentation as well.

Question 4: What are the Procedures for an ICE I-9 Audit?

Dr. Oberheiden: The I-9 audit process begins with ICE issuing a Notice of Inspection (NOI). Once the NOI is received, the target of the audit has three business days to produce all required I-9 forms for its current and former employees. In many cases, ICE will request various forms of supporting documentation as well.

Next, ICE will review the employer's I-9 forms (and supporting documentation, if applicable) for any deficiencies. For technical violations, employers are given 10 days to come into compliance. Failure to correct technical violations can lead to civil enforcement action, as can any substantive violations (as identified by ICE). Evidence of knowing or intentional violations can lead to enhanced penalties and the possibility of criminal prosecution under IRCA and the Immigration and Nationality Act (INA).

While this may all sound fairly streamlined and straightforward, responding to an ICE I-9 audit can be an arduous and time-intensive process, particularly given the short deadlines involved. Additionally, employers must not assume that ICE's compliance determinations are correct-in many cases they are not, and employers will need to take responsive action in order to avoid unwarranted penalties.

Question 5: What Should I Do During an ICE I-9 Audit?

Dr. Oberheiden: During ICE I-9 audits, employers should produce all required documentation, but they should do so carefully. In particular, they should avoid disclosing an information that they are not legally-required to disclose. Even if an employer has nothing to hide, providing unnecessary information during an I-9 audit does not provide any benefit, and it only serves to expand the universe of documents that ICE will review in order to make its compliance determinations.

At the same time, it is important for employers to play an active role in the I-9 audit process. Despite being labeled an "audit" or "inspection," ICE's examination of the company's books and records is a serious matter with serious legal implications. In order to mitigate against the risk of unwarranted and unnecessary consequences to the fullest extent possible, companies should engage legal counsel to steer ICE's audit toward a favorable resolution. While there are means of challenging audit determinations and disputing allegations of IRCA and INA violations in federal court, it is far more cost-effective to avoid the need to rely on these means at all.

Question 6: What are the Potential Consequences of an ICE I-9 Audit?

Dr. Oberheiden: In most cases, ICE I-9 audits result in no determination of liability or civil enforcement action (although criminal prosecution is possible, as discussed in more detail below). When criminal sanctions are not on the table, potential outcomes include:

• Notice of Inspection Results - If ICE determines that your business is compliant, you will simply receive a notice that the audit has been concluded without further consequences.

• Notice of Suspect Documents - If ICE determines that your company has employed unauthorized workers, it will issue a Notice of Suspect Documents. This notice will indicate that you are at risk for civil or criminal prosecution if you continue to employ the unauthorized workers.

• Notice of Discrepancies - If ICE cannot determine whether an employee is authorized, it will issue a Notice of Discrepancies requesting additional documentation.

• Warning Notice - If ICE identifies substantive violations but determines that no enforcement action is warranted, it will issue a Warning Notice indicating that the employer is expected to fully comply with IRCA and the INA going forward.

• Notice of Intent to Fine (NIF) - If ICE identifies substantive violations and determines that enforcement action is warranted, it will issue an NIF. The NIF will be accompanied by charging documents that outline the specific violations alleged.

Question 7: Can an ICE I-9 Audit Lead to Criminal Charges?

Dr. Oberheiden: Yes, an ICE I-9 audit can lead to criminal charges. In addition to criminal prosecution under IRCA and the INA for knowing and continued violations involving the employment of undocumented workers, employers and their owners, officers, and other key personnel can also potentially face criminal prosecution under federal statutes including (but not limited to):

• 18 U.S.C. § 1001 (for making false statements to ICE investigators or withholding material information during an I-9 audit)

• 18 U.S.C. § 1519 (for destroying records, falsifying I-9 forms, or otherwise engaging in obstruction of justice during an I-9 audit)

• 8 U.S.C. § 1324 (for, among other things, knowingly employing at least 10 foreign nationals knowing that they are not authorized to work in the United States)

In criminal enforcement cases, employers can face substantial fines, and individuals can face fines plus the potential for long-term federal imprisonment. For example, making false statements to ICE investigators carries statutory fines and up to five years of imprisonment, and a conviction for obstruction of justice can carry up to 20 years behind bars.

Question 8: What if I Didn't Know that I Hired an Undocumented Worker?

Dr. Oberheiden: In many cases, despite their best efforts to comply with the law, employers will still hire undocumented workers who are not authorized to work in the United States. While unknowingly hiring unauthorized workers is a defense to criminal allegations under IRCA and the INA, it is not a defense to civil enforcement by U.S. Immigration and Customs Enforcement.

With this in mind, employers need to be careful when dealing with ICE during the audit process (this is also another important reason why employers should not voluntarily disclose non-required information to ICE). If unintentional violations are discovered, they should be dealt with appropriately, and the company's leadership should develop an informed strategy for moving forward with the advice of legal counsel.

Question 9: Is There Anything I Can Do to Avoid an ICE I-9 Audit?

Dr. Oberheiden: Strictly speaking, no, there is not anything you can do to completely avoid the risk of being audited by ICE. However, there are several steps you can take to mitigate your risk of being audited and facing undesirable consequences as a result of the I-9 audit process.

The first of these steps is to implement an effective I-9 compliance program. If your business is compliant with IRCA, the risk of its I-9 billing data standing out during ICE's data analysis will be reduced, and the likelihood of employees complaining to ICE will be reduced as well. Furthermore, even if something still triggers an audit, your company's compliance efforts should facilitate a swift and favorable resolution.

The next major step is to implement internal I-9 compliance auditing. By conducting compliance audits yourself, you can avoid having issues uncovered by ICE. Critically, however, in order to avoid having the results of your internal audits used against you, they should be conducted by outside counsel in a manner that preserves the attorney-client privilege.

Question 10: What Factors Do Employers Need to Consider Prior to Conducting an Internal I-9 Audit?

Dr. Oberheiden: From preserving the attorney-client privilege to avoiding allegations of employment discrimination, there are several factors that employers need to consider prior to conducting internal I-9 audits. While these internal audits are necessary, they can also be dangerous if not handled appropriately. U.S. Immigration and Customs Enforcement has published guidance for conducting internal I-9 compliance audits; and, once again, working with legal counsel will be critical for avoiding unnecessary and unintended consequences.