Immigration and Customs Enforcement (ICE) is continuing to aggressively pursue employers for I-9 violations, according to recent accounts from Texas and New Jersey. The Houston Chronicle reports that Texas employers have been fined more than $600,000 since October 2009 for a variety of I-9 issues, including failure to complete any I-9 forms (a $34,000 mistake for one company) to more serious issues of knowingly hiring unauthorized workers. Elsewhere, the New Jersey Record reports that 25 businesses in the state have been issued a Notice of Intent to Fine (NOIF) in the last 10 months after ICE investigations revealed I-9 mistakes. The NJ companies face fines totaling roughly $1.25 million. The I-9 Inspection Process – A Brief Review The first sign of an investigation arrives in the form of a Notice of Inspection (NOI), delivered by Special Agents from ICE, which demands the employer to produce the requested I-9s (and other documentation) within 3 business days. Typically, employers must also produce a copy of the payroll, list of current employees, Articles of Incorporation, business licenses, and social security no-match letters (if any). ICE forensic auditors will review the I-9s for substantive errors (those which cannot be cured) or paperwork violations (those which can be cured). ICE will then issue a Notice of Technical Deficiencies, highlighting those I-9s which must be corrected within 10 days to avoid fines. An employer may receive a monetary fine for all substantive and uncorrected technical violations, ranging from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of the violation, whether the violation involved unauthorized workers, and a history of previous violations. If violations are found during an audit, ICE will then issue a Notice of Intent to Fine. Last November, ICE released an overview of the I-9 inspection process, which includes the most common notices that employers receive and a chart outlining how penalties are calculated. The document is available on their website here. Also, for emerging trends in recent I-9 audits, please read our guest blog from attorney, Paul Zulkie.
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