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October 21, 2013

Tips to survive an ICE I-9 compliance audit… Are you ready for ICE? And I am not speaking about the cold winter.
Despite months of legislative inactivity on a stalled federal immigration reform bill, federal immigration enforcement activities have not slowed. According to the Bureau of Labor Statistics, just before Labor Day, 1,000 businesses across the U.S. were notified by U.S. Immigration and Customs Enforcement (ICE) that they would need to prepare documents for I-9 compliance and worksite enforcement audits. This is the largest round of these inspections, known as "silent raids," since 2009. The newest round of audits hit restaurants, food processing, high-tech manufacturing, agriculture, and other industries, but no industry is insulated from the possibility of I-9 audit. According to the Bureau of Labor Statistics, in the last 4 years, the government has audited at least 10,000 employers and imposed more than $100 million in administrative and criminal fines, and this enforcement push is unlikely to slow. Just because you are not on the list does not mean they cannot come knocking at your door. So, what can you do to ensure that you are prepared for a visit from ICE? Warm Up and Be Prepared The first step of an administrative inspection is receipt of a "Notice of Inspection" (NOI), which requires the employer to produce all Forms I-9 within 3 business days. In some cases, supporting documentation such as payroll records, employee lists, and licenses may be required.

After thorough examination of these documents, ICE will issue any of several notices, depending on its findings. The "Notice of Suspect Documents" and "Notice of Discrepancies" are issued when employees are either determined to be unauthorized to work or when a determination cannot be made. Employers will be given the opportunity to present additional documentation to establish employment eligibility—otherwise, employers will be advised to terminate the work relationship. If errors in the Forms I-9 are found, a "Notice of Technical or Procedural Failures" will be issued, and employers will have 10 business days to correct these errors (otherwise they will become substantive violations.) When the review is complete, a Notice of Intent to Fine will be issued, upon which the employer may negotiate a settlement or request an administrative hearing within 30 days. If no further action is taken, a Final Order will be issued and the employer will be liable for all penalties assessed. Fines for knowingly hiring or continuing to employ unauthorized workers can reach as much as $16,000 per violation, while substantive and uncorrected technical violations can be as much as $1,100 per violation. What’s more, certain "enhancements" can be added to fines based on business size, history of violation, and seriousness of the violation. It’s not all about immigration It is important to note that, while civil and criminal fines for employing undocumented workers can be quite extensive, the possibility of a hefty ICE fine is not limited to those who hire unauthorized labor. The fines for technical I-9 violations can also add up quickly. Further, though the new revision of Form I-9, as released in March, 2013, includes an extensive instruction handbook to walk employers through the documentation process, there is significant room for error on this seemingly innocuous form, whether in storage methods, documents accepted, or even proper correction of previous errors. So, what can employers do to avoid I-9 violations and the subsequent fines? Find out how CertiPay can help your company prevent an I-9 violation. Clare Vazquez, is a consultant with CertiPay in Boca Raton, Florida, providing industry leading Human Resources, Payroll, Time & Attendance, and Benefits Administration. She works hands-on with her clients providing customized training programs, harassment investigations/complaints, HR Audits, and advising in government compliance. For more information contact Clare at 561281-4022 or email