Form I-9 Audits Conducted By U.S. Immigration and Customs Enforcement (ICE) Can Present Substantial Risks for Employers
As part of the administration’s efforts to crack down on illegal immigration, U.S. Immigration and Customs Enforcement (ICE) has ramped up its efforts to identify undocumented workers through Form I-9 audits. Under federal law, employers must use Form I-9 to verify their employees’ identities and authorization to work in the United States, and non-compliance can expose employers to substantial penalties.
Along with using audits to identify undocumented workers, ICE also uses Form I-9 audits to assess employers’ compliance and hold them accountable for compliance failures. These audits can be invasive, and they can happen very quickly. As a result, employers need to ensure that they are prepared, and they should engage experienced defense counsel promptly upon receiving a Notice of Inspection (NOI).
Our Form I-9 Audit Services for Employers
We provide comprehensive legal representation for employers in New York and elsewhere throughout the country who are facing Form I-9 audits. We also assist employers with assessing Form I-9 compliance and preparing for the possibility of facing scrutiny from ICE. Our Form I-9 audit services for employers include:
Internal Form I-9 Compliance Assessments
Our lawyers can assist with assessing employers’ Form I-9 compliance and addressing any compliance shortcomings as necessary. Due to the substantial risks involved with facing scrutiny from ICE (which can include both civil and criminal penalties), it is imperative that employers have a clear understanding of the current status of their immigration-related compliance.
We can examine employers’ Form I-9 files to determine if they meet all applicable requirements (and we can do so on an emergency basis if necessary), and then we can advise employers of their current risk exposure. If employers do not have all of the records they need to go through an ICE audit of their I-9 files unscathed, we can assist them with coming into compliance as quickly as possible.
Preparing for a Potential Form I-9 Audit
Due to how quickly Form I-9 audits can take place (ICE is only required to provide three days’ advance notice of an impending audit), it is prudent for employers to prepare in advance for the possibility of facing scrutiny from ICE. Even if an employer is in compliance, if it cannot affirmatively demonstrate its compliance, it could still face audit-related penalties.
Our lawyers can assist employers with preparing to face ICE scrutiny. This includes providing assistance such as:
- Ensuring that employers’ Form I-9 files are complete, organized, and available to provide to ICE
- Developing policies and procedures for responding to a Notice of Inspection (NOI)
- Training company personnel on how to respond to inquiries from ICE agents
As with all of our employer defense and consulting services, we can custom-tailor solutions to individual employers’ specific needs. In light of the current administration’s focus on immigration-related enforcement, we strongly advise that all companies ensure their key personnel have a clear understanding of what to do (and what not to do) in the event of a Form I-9 audit.
Representation During Form I-9 Audits
Once an employer receives an NOI, time is of the essence. When facing a Form I-9 audit, employers should engage experienced defense counsel immediately, and they should rely on their counsel to help steer the audit toward a favorable resolution. Our services during Form I-9 audits include:
- Advising our clients regarding their rights, risks, and responsibilities
- Communicating with ICE on behalf of our clients
- Ensuring that ICE has access to all relevant Form I-9 records (including supporting documentation)
- Ensuring that ICE does not overstep its inspection authority
- Addressing any questions or concerns as they arise
- Working to proactively address any compliance issues identified during the audit
- Working to close the audit without further consequences
Generally speaking, the sooner we get involved, the more we will be able to do to help. From determining what records are available to determining what records ICE is entitled to review, and from providing clarification during the audit process to documenting flaws in the audit process that provide grounds to contest the outcome, there is a lot that we can typically do to protect employers that are facing scrutiny from ICE. If your company is facing a Form I-9 audit, we encourage you to contact us promptly to learn more.
Addressing (or Contesting) the Outcome of a Form I-9 Audit
If ICE determines that an employer is in compliance following a Form I-9 audit, it will issue a Notice of Inspection Results, and that will generally be the end of the inquiry. However, if ICE identifies any compliance failures, then there will be more work to do. Potential adverse outcomes of Form I-9 audits include:
- Notice of Suspect Documents
- Notice of Discrepancies
- Notice of Technical or Procedural Failures
- Warning Notice
- Notice of Intent to Fine (NIF)
Each of these has different triggers and different consequences. When an employer receives one of these notices or warnings from ICE following a Form I-9 audit, our lawyers can assist with either addressing the issues raised in the notice or warning (if warranted) or contesting ICE’s conclusions. In appropriate cases, we can also seek to negotiate a resolution with ICE that avoids further consequences.
When facing fines or other adverse consequences following a Form I-9 audit, informed decision-making is essential. Our lawyers work with our clients’ executives and in-house counsel to help them make informed and strategic decisions with their companies’ long-term best interests in mind. In all cases, our focus is on helping our clients mitigate their risk, whether this means taking steps internally, working with ICE, or challenging ICE’s actions in federal court.
Schedule an Appointment with a Form I-9 Audit Lawyer at Bell Law Group
If you would like more information about our Form I-9 audit services for employers, we invite you to get in touch. To schedule an appointment with a national Form I-9 audit lawyer at Bell Law Group, please call 516-280-3008 or tell us how we can get in touch online today.
