by Casey M. Nolan, Esq.
Whether your company has received a Notice of Intent to Audit (NOI) from the U.S. Immigration and Customs Enforcement (ICE) or you have been lucky enough to avoid one until now, it is important to understand what a NOI is and how it may impact your organization.
How an audit begins
The audit process starts when an ICE agent serves an NOI. In addition to Form I-9 documentation, the NOI typically requests other information, including:
- A list of all current and former employees
- Hire and termination dates
- Payroll records
- Quarterly tax statements
- Copies of any immigration filings
- Copies of any Social Security communications (including “no-match” letters)
- Articles of incorporation
- Information regarding independent contractors.
The timeline to respond to a NOI is short—usually three business days—although ICE is sometimes willing to provide a short extension.
What happens in an audit
Once the requested documentation has been turned over to ICE, an auditor reviews the records and notes any deficiencies in the employer’s I-9s.
If any technical or procedural irregularities are found, ICE notifies the employer and allows 10 days to correct the errors.
Errors typically involve failing to ensure that the employee puts a date on Section 1, or neglecting to provide the business name and address in Section 2.
Unfortunately, however, employers do not get a chance to correct substantive I-9 violations. Those might include failing to reference a document number or relying on documents not listed as acceptable identity or employment authorization documents.
The difference between the two types of violations is that a substantive violation is one that is more likely to lead to the hiring of an unauthorized worker.
Penalties for violations
Employers are generally fined between $110 and $1,100 per substantive or uncorrected technical violation (the amount depends on the number of total violations). The total fine may be adjusted up or down based on the application of certain aggravating or mitigating factors.
In addition, if, during the course of an audit, an employer is found to have knowingly hired or continued to employ unauthorized workers, it will face additional fines. Also possible are criminal sanctions and debarment from future government contracts.
What employers must do
So, what is the take-away? Do not wait for ICE to darken your doorway before you take I-9 compliance seriously.
Employers should implement an effective and workable compliance plan for their organizations, including conducting regular I-9 audits, making any necessary corrections to forms, responding appropriately and quickly to Social Security Administration no-match letters and training staff who complete I-9s on proper procedures.
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Author: Casey Nolan is an associate attorney practicing in the Employment Law Group at Gray Plant Moody in Minneapolis.
I-9 Forms: Frequently Asked Questions ... and the Answers
1. What are the employment verification requirements of IRCA?
IRCA requires that when an applicant is hired, an employer must sign a Form I-9 attesting that it has examined appropriate documents, provided by the applicant, which verify the applicant's identity and authorization to work in the United States. The applicant must also attest on the form that he/she qualifies for employment. Verification must be done within three days of hire, but could be extended to 90 days if the employee presents a receipt proving that an application for replacement of the authorization document has been filed.
2. Must employers complete an I-9 form for everyone who applies for a job?
No. Employers need to complete I-9 form only for people they actually hire. For purposes of the I-9 rules, a person is "hired" when he/she begins work for wages or other compensation.
3. How long must I-9s be kept for terminated employees?
Verification forms must be kept for three years from the date of hire, or one year from the date of termination, whichever is longer.
4. Is an employer responsible for knowing whether the documents shown for the I-9 are falsified?
The general rule of thumb is that employers must make reasonable efforts to ascertain the legitimacy of such forms. But if later events turn up fraud on the part of the employee, the employer is not automatically liable.
Employers can fall into several other traps where I-9 documents are concerned. You've got to check the applicable documents for proof within three days of employment, or obtain receipts showing the applicants have applied for the proper documents.
You must also accept any document or combination of documents that the feds have deemed acceptable. That is, you can't demand more than the law demands. You also must demand original documents. If, however, a birth certificate is used as List C documentation, a certified copy bearing an official seal is allowable. The employer is responsible for making sure the I-9 form itself is completely filled out, including the employees' section. And you should keep track of any expiration dates on any documents so you're not caught with your guard down at a later date.
5. What must a company do when rehiring an employee?
If an employee who is eligible to work in the United States leaves and is rehired within three years, the company may still rely on a previously completed Form I-9. But if the period exceeds three years, a new Form I-9 must be completed.
6. Can we fire an employee who fails to produce a required document within three business days?
Yes. Employers can terminate an employee who fails to produce required documents, or a receipt for a replacement document (in the case of lost, stolen, or destroyed documents), within three business days of the date of hire. However, employers must apply these practices uniformly to all employees. If an employee presents a receipt for a replacement document, he/she must produce the actual document within 90 days of the date of hire.
7. What happens if an employer properly completes its portion of an I-9 form, but the federal government later discovers that an employee is n't eligible to work in the U.S.?
Employers can't be charged with a verification violation; however, employers can't knowingly continue to employ this employee. Employers will have a good-faith defense for knowingly hiring an unauthorized alien, unless the government can prove they had actual knowledge that the employee wasn't eligible to work in the U.S.
8. We have employees who work in satellite offices. Can they fax me copies of the documents, or do I need to see the originals?
Faxes aren't allowed, but you may use an agent, such as a notary public or attorney, at the satellite office to inspect employees' documents. Whether someone is an agent is controlled by state agency law.
