Worksite Compliance: Form I-9 Inspections
Employers are required by law to verify the identity and employment eligibility of all of their employees hired in the United States after November 6, 1986 and to document this verification on the Employment Eligibility Verification Form I-9 (Form I-9).
The law also requires employers to maintain for inspection original Forms I-9 for all current employees. For former employees, employers must retain Forms I-9 for a period of at least three (3) years from the date of hire or for one (1) year after the employee is no longer employed, whichever is longer. Employers who are found to violate the verification and employment eligibility requirements may be subject to criminal and civil sanctions.
Immigration Customs & Enforcement (“ICE”) initiates an administrative Form I-9 inspection process by serving a Notice of Inspection (“NOI”) upon an employer compelling the production of Forms I-9, and, sometimes, supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses. The law provides employers with at least three (3) business days to produce the Forms I-9, and ICE agents or auditors will then conduct an inspection of the Forms I-9 for compliance.
Once the inspection is completed, ICE will notify the audited party of the results in writing. The most common notices include:
- Notice of Inspection Results (also known as “compliance letter”): used to notify a business that they were found to be in compliance.
- Notice of Suspect Documents advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has determined that an employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ that individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.
- Notice of Discrepancies: advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
- Notice of Technical or Procedural Failures: identifies technical violations identified during the inspection and gives the employer ten (10) business days to correct the forms. After ten (10) business days, uncorrected technical and procedural failures will become substantive violations.
- Warning Notice: issued in circumstances where substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.
- Notice of Intent to Fine (“NIF”): may be issued for substantive, uncorrected technical error, knowingly hiring and continuing to employ violations. When ICE issues a NIF to the audited party, ICE will also provide charging documents that specify the violations committed by the employer. The employer has the opportunity to either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer (“OCAHO”) within thirty days of receipt of the NIF. If the employer takes no action after receiving a NIF, ICE will issue a Final Order.
If technical or procedural violations are found during the inspection, employers are given ten (10) business days to make corrections, and they may receive a monetary fine for all substantive and uncorrected technical violations.
Employers found to knowingly hire or continue to employ unauthorized workers must cease the unlawful activity, and may be fined, criminally prosecuted, or subject to debarment by ICE, which means that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.
The monetary penalties for knowingly hiring and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which include failing to produce a Form I-9, range from $110 to $1,100 per violation. ICE will consider five (5) factors in determining penalty amounts: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.