I-9 Audits on the Rise, According to Federal Immigration Authorities

January 4, 2013

367985_9969.jpgThe number of employer audits conducted each year by U.S. Immigration and Customs Enforcement (ICE) has increased significantly in the past five years. The Obama administration has reportedly made investigation and enforcement of employment regulations a central feature of its immigration policy. The goal is to penalize companies that knowingly employ unauthorized individuals, and to deter other companies from doing so. Employers that do not maintain adequate records may face fines, even if they do not employ any unauthorized workers.

All employers must collect employment authorization verification forms, known as Form I-9, from employees and new hires. Employees and new hires must submit copies of documentation that demonstrates their identity and their eligibility to work within the United States. Employers are responsible for verifying that these documents appear authentic on their face. In practice, this puts managers and human resources officials in charge of authenticating government documents, a task for which they may not be qualified.

ICE may conduct an audit or inspection of a company's employment records by serving the company with a Notice of Inspection. This gives the company three business days to produce its I-9 records, as well as such other employment records as ICE inspectors may require. Inspectors must notify the business of any violations or discrepancies identified in their review, and the business has ten business days to correct any problems. After that period is up, ICE may assess penalties against the company.

A review of ICE records by the Associated Press found that the total number of annual audits conducted by ICE increased by a factor of twelve over the past five fiscal years. While ICE conducted 250 audits during fiscal year 2007, by fiscal year 2012 that number had grown to over three thousand. The amount of fines assessed has dramatically increased as well, from about $1 million in 2009 to $13 million in 2012.

Industries that involve manual labor, which have traditionally hired large numbers of immigrants, have reportedly been hard-hit by ICE's enforcement efforts. Several employers quoted by the Associated Press expressed concern as to how ICE is picking the subjects of its audits. An ICE agent quoted in the story stated that the agency relies on tips from the public and from individuals within the companies themselves, and that it also selects some businesses at random for audits.

Penalties for knowingly employing unauthorized individuals can range from fines to jail time, but companies may face fines simply for failing to maintain I-9 files properly. The penalty for inadequate I-9 files consists of fines between $110 and $1,100 per file. Companies that knowingly employ people with no employment authorization, or who commit document fraud, may face fines of $375 to $3,200 per violation for first offenses, and fines for subsequent offenses may go as high as $16,000. People who have a practice of hiring or recruiting ineligible workers may face up to six months in prison in addition to fines of $3,000 per employee. The largest fine imposed by ICE in 2011 was nearly $400,000 to an employment agency in Minnesota.

The immigration attorneys at Samuel C. Berger, P.C. help immigrants seeking visas to work for, or invest in, a New York or New Jersey business, and help businesses petition for skilled immigrant employees. To schedule a consultation with one of our attorneys, contact us today online or at (212) 380-8117.

More Blog Posts:

Immigration Authorities Have Allegedly Undercounted H-1B Visas Since 2008, New York & New Jersey Immigration Lawyer Blog, December 20, 2012

Natural Disasters and I-9 Compliance, New York & New Jersey Immigration Lawyer Blog, November 9, 2012

Justice Department Sues Employer for Alleged Violations of I-9 Rules, New York & New Jersey Immigration Lawyer Blog, October 19, 2012

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