Immigration and Customs Enforcement (ICE) is Cracking Down on Employers: Expect I-9 Audits This Summer and Beyond

I-9 audits are on the rise. U.S. Immigration and Customs Enforcement (ICE) – the agency charged with enforcing U.S. Immigration laws - reports that between October 1, 2017 and May 4, 2018, the agency initiated approximately 2,282 employer audits (an average of about 321 audits per month). Contrast that with the prior fiscal year figures (1,360 employer audits, averaging about113 audits per month) and you can see where we the administration is heading.

If a nearly 300% increase in employer audits isn’t enough of a signal, try this:  ICE recently reported that it plans to open over 5,000 additional audits this summer alone, with a goal of reaching 15,000 I-9 audits per year. Industries most likely to be targeted are those with a history of hiring undocumented workers. Historical targets include companies in the agriculture, construction, leisure and hospitality, and manufacturing industries. As a consequence, employers should be prepared to conduct an internal audit and review internal recordkeeping practices to ensure compliance with federal law. Pay close attention to the completeness and accuracy of your forms. Common mistakes include missing information, failure to obtain signatures, failure to list the date of hire, among others. Not catching these mistakes can subject your company to fines and penalties.

Things to know:

Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), employers are prohibited from hiring unauthorized aliens. To that end, the law requires employers to complete the Form I-9 for all employees hired on or after November 6, 1986. These forms must be kept on file for a period of three (3) years from the date of hire or one year from the date of termination, whichever is later.

Generally, employers will receive just three (3) days’ notice of an impending I-9 audit, during which time the employer must gather and produce an I-9 for existing (and sometimes former) employees. Additional documents such as organizational information, payroll records and employee rosters are also typically requested, so be prepared.

If you receive a Notice of Inspection, be certain to contact your attorney immediately as time is of the essence.

If you have questions or require assistance in reviewing company policies and procedures, please contact a member of the BrownWinick Employment Practice Group.