How Employers Can Prepare For An Immigration Crackdown
By James Larsen, managing attorney with over fifteen years of experience in employment eligibility verification (I-9) matters.
Several ago I wrote a blog article, ICE is Coming, 5 Ways Employers Can Prepare, in response to then ICE Director Thomas Holman calling for a 400 percent increase in I-9 audits of employers. There was indeed a massive increase from 1,360 audits to 6,000 audits from one fiscal year to another, but with a global pandemic, the anticipated enforcement activity never fully materialized.
Years later, Thomas Holman is seeking to make good on his promise of the largest immigration crackdown in history as the recently appointed Border Czar under a second Trump administration. Naturally, one would expect this means an increase in immigration audits.
An immigration audit is typically initiated when U.S. Immigration and Customs Enforcement (ICE) serves an employer with a Notice of Inspection (NOI), which requests the company’s I-9 forms and supporting documentation for review. The employer is usually given a set period, typically 3 days, to provide the requested records. During the audit, ICE will examine the I-9 forms for any errors, such as missing information, improper signatures, or failure to reverify employee work authorization when required. They also check for compliance with employment eligibility laws, ensuring that workers are legally authorized to work in the U.S. If discrepancies are found, ICE can issue fines, and in severe cases, pursue additional penalties or criminal charges for knowingly employing unauthorized workers. Employers must respond within the prescribed time frame, and failing to comply with ICE's requests can lead to further legal and financial consequences
Penalties for I-9 violations can be substantial. Civil penalties range from $281 to $2,789 per violation for minor errors or missing information, such as failing to complete the form properly or on time. If an employer is found to be knowingly employing an unauthorized worker, the fines can be significantly higher, reaching up to $27,894 per violation (third or more offense). Additionally, employers are required to reverify an employee's work authorization when it expires, and failure to do so can lead to further penalties.
For businesses looking to avoid these risks, taking proactive steps such as conducting internal I-9 audits and ensuring full compliance with immigration laws is critical. By doing so, employers can reduce the likelihood of costly penalties and maintain smooth operations without the threat of government enforcement.
The five tips I shared years ago remain relevant for employers today:
- Organize all Form I-9 records and ensure they are easily accessible, whether stored in paper format or electronically. This will not only save time if inspected, but will also put employers in a better position to conduct internal audits when necessary.
- Check the company’s payroll roster against the Form I-9 records to ensure a Form I-9 has been completed for every active employee hired after November 6, 1986. This is extremely important. Employers must have a Form I-9 on file for every employee hired after that date.
- Check to ensure that a Form I-9 is on file for all former employees that were hired within the past three years. Employers are required to keep record of all former employees up to the previous three years; this includes the previous employees’ Form I-9.
- With the assistance of qualified immigration counsel, conduct a pro-active Form I-9 audit to identify and correct any deficiencies. It’s strongly recommended that all employers receive Form I-9 compliance training and participate in an audit to find and correct any correctable deficiencies before ICE does.
- Develop and communicate an action plan for employees to follow if a Notice of Inspection is ever received. This tip is often forgotten. Frequently, employers are caught unaware and unknowingly hand over original Forms I-9 and make statements without first speaking with HR or management or their immigration attorney. At a bare minimum, all employees should be trained to review the Notice of Inspection to make sure the correct employer is identified on the Notice and get the name and contact information of the ICE agent and, before answering any questions, contact the HR/Company Management immediately. The company representative should then immediately contact the company’s immigration attorney so the attorney can advise and handle all communications with the ICE agent moving forward. Staff members should be trained that they should never agree to waive the standard three-day notice period and provide the original Forms I-9 and any supporting documentation without first consulting with immigration counsel.
Larsen Immigration Law Group offers proactive I-9 audit services to help businesses ensure their compliance with immigration laws. Our team can thoroughly review your I-9 forms to confirm they are properly completed and up to date, identifying any potential errors or gaps that could lead to penalties. We provide a detailed estimate of your potential liability based on any discrepancies found, helping you understand the financial risks you may face. Additionally, we offer legally approved strategies for remediating any issues, ensuring that your business is fully compliant and protected from costly fines and legal repercussions. By taking a proactive approach, we help you mitigate risks before they escalate into more significant problems.
For more of tips on the subject, visit some of my prior articles on JD Supra: James Larsen's I-9 Insights and at James Larsen, Author at Foster Global
Immigration law changes rapidly. This article is for informational purposes only, reflects the law as of its publication date, and may be superseded by later changes in the law, regulations or agency policy. It is not legal advice, and reading it does not create an attorney-client relationship.La ley de inmigración cambia rápidamente. Este artículo es solo para fines informativos, refleja la ley a la fecha de su publicación y puede quedar superado por cambios posteriores en la ley, las regulaciones o las políticas de las agencias. No es asesoría legal, y leerlo no crea una relación abogado-cliente.