Form I-9 Compliance: ICE Worksite Enforcement Investigations on the Rise

Under the Immigration Reform and Control Act (IRCA), employers must verify the identity and employment authorization of all employees and document that information using the Employment Eligibility Verification Form I-9. Immigration and Customs Enforcement (ICE) is responsible for enforcing the IRCA, which is precisely what it has been doing.

In less than seven months, ICE more than doubled the total number of worksite investigation cases opened all of last year. ICE also made more criminal and administrative arrests this year (1,204) than last year (311) and initiated more I-9 audits (2,282) than last year (1,360).

ICE uses worksite investigations to ensure U.S. businesses maintain a culture of compliance. ICE has adopted a three-prong approach to conducting worksite enforcement.

  • Compliance through I-9 inspections, civil fines and referrals for debarment.
  • Enforcement by arresting employers who knowingly employ undocumented workers and employees working without authorization.
  • Outreach through ICE’s IMAGE program to instill a culture of compliance and accountability.

ICE’s worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly hire illegal workers. Employers who knowingly hire or continue to employ unauthorized workers will be required to cease the unlawful activity, may be fined and criminally prosecuted. The standard fine per unauthorized alien who is knowingly hired or continues to be employed is:

  • $548 – $4,384 (first offense)
  • $4,384 – $10,957 (second offense)
  • $6,575 – $21,916 (third or subsequent offense)

This probably doesn’t concern those who don’t knowingly hire illegal workers. However, ICE’s strategy also includes Form I-9 audits and civil penalties, which probably should concern those who don’t correctly and consistently comply with IRCA’s Form I-9 requirements.

An ICE audit can be painful and costly for noncompliant employers. An employer must have completed Forms I-9 for all current employees. For former employees, Forms I-9 must be retained for at least three years from the date of hire or one year from the date of termination, whichever is longer.

The audit process begins with a Notice of Inspection (NOI) that compels an employer to produce Forms I-9 so they can be inspected for compliance. If technical or procedural violations are found, an employer is given ten business days to make corrections. The standard fine for uncorrected technical violations ranges from $220 to $2,191, for each Form I-9 with violations.

ICE’s increased investigation and enforcement efforts puts all employers at risk. Form I-9 compliance can be technical, confusing and time consuming. It’s also mandatory. Unfortunately, the consequences for having flawed, deficient or inconsistent practices and procedures can be devastating.

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