Has ICE Been Busy in 2013? What to Expect if You Get a Notice of Inspection

On November 6, 1986, the Immigration Reform and Control Act required employers to verify the identity and employment eligibility of their employees hired after November 6, 1986 and created criminal and civil sanctions for employment related violations. 8 C.F.R. ยง 274a.2 designates the Employment Eligibility Verification Form I-9 as the means to do so.
Ensuring employer compliance is the responsibility of ICE and is initiated by a Notice of Inspection (NOI). Over 3000 NOIs were issued in 2013. Based upon that inspection, more than 50% of the Notices of Intent to Fine were sent to small businesses. Misconceptions about I-9 compliance among small business owners run the gamut from the employer believing it is “safe” if it only hires US citizens to the use of E-Verify somehow insulates it from ICE enforcement for I-9 deficiencies.
Once the NOI arrives, the employer is permitted at least 3 business days to produce its I-9s for inspection. In addition to the I-9s, ICE can and does request supporting documentation, such as payroll records, a list of current employees, the company’s articles of Incorporation, and any business licenses.
ICE will notify the audited employer in writing of the results of the inspection. The following are the most common notices:

Penalties for substantive, uncorrected, yet technical I-9 violations range from $110 to $1,100 per employee. The average fine for a small business without legal representation runs approximately $935 per employee. The civil penalties for hiring undocumented workers range from $375 to $3,200 for the first violation, $3,200 to $6,500 for the second violation, and $4,300 to $16,000 for the third and subsequent violation. Knowing violations can result in criminal sanctions which include imprisonment of not just owners, but managers as well. Sanctions also include debarment from federal contracts and other government benefits.
While annual I-9 self-audits are a good idea, they must be conducted correctly. Fines can result if the I-9s are redone and the originals are discarded, changes to the I-9 are made without initialing and dating the forms, or back-dated information is added.
At a minimum, an employer should have the following policies in place:

Many businesses are turning to electronic I-9s that are integrated with E-Verify. These programs are helpful but problems with an electronic I-9 provider will not insulate an employer from liability. Know your I-9 provider and, in the event of an NOI, be sure it can produce the I-9s and documentation promptly and in readable format.
Only Trying to Help: Desk Reviews or Site Visits by US Citizenship and Immigration Services’ Verification Division Monitoring and Compliance Branch
The US Citizenship and Immigration Service’s Verification Division Monitoring and Compliance Branch (M&C Branch) observes E-Verify system use to help employers comply with the Memorandum of Understanding, E-Verify Manuals, related Form I-9 instructions, and applicable laws. In North Carolina, use of E-Verify for new hires became mandatory for employers with 25 or more employees on July 1, 2013. The M&C Branch identifies and seeks to deter possible discriminatory practices and employer misuse. While the M&C Branch does not fine employers, it may refer cases of suspected misuse, abuse, and/or fraud to appropriate agencies.
Specifically, the M&C Branch’s function is to check the following:

The desk review or site visit is a pro-active effort by the M&C Branch to provide guidance one-on-one to an employer on the correct use of E-Verify. A desk review is conducted by phone and email and a site visit is an in-person visit to the employer’s place of business.
Triggers that may bring an employer to the attention of the M&C Branch resulting in a desk review or site visit include creating duplicate cases for the same employee, verifying employees hired before November 7, 1986, creating cases for employees hired before the employer enrolled in E-Verify (with the exception of certain federal contractors), and immediately terminating an employee based upon a tentative nonconfirmation.

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