Think your organization is immune from Form I-9 audits? Think again! No matter the size nor the industry, ICE does not discriminate when it comes to I-9 compliance. If you read my recent review of the DHS Budget Proposal for FY2013, you’ll know that the government considers the enforcement of U.S. immigration laws as one of its top five priorities. Form I-9 audits, as numerous as they have become over the last 4 years, are especially lucrative for the agency, strictly from an economics perspective. DHS pulled in over $10 million in fines alone for FY2011 and visited more than 2,500 worksites as part of their enforcement efforts.
Yet, it’s curious that many employers continue to operate with the notion that Form I-9 audits conducted by ICE happen to other organizations and not their own. This is perplexing. There are still many myths that surround the Form I-9 auditing process, particularly who is targeted. Let’s take a closer look at some of these myths and see if we can debunk them.
Myth 1: ICE targets only organizations that hire foreign workers for a Form I-9 inspection.
FACT: The misconception that only organizations who hire foreign workers are selected for worksite Form I-9 inspections is pervasive but an incorrect one. Since ICE is the enforcement arm of DHS, in addition to Form I-9 inspections, it also conducts worksite enforcements (commonly known as “worksite raids” to the dismay of DHS), which involves physical inspections of an employer’s work location. When you mix media reports about worksite enforcements with reports about audit inspections, it’s very easy to confuse the two. Coupled with media reports of employees who lacked proper work authorization being fired as a result of either worksite enforcements or audit inspections, the presumption that only organizations who hire foreign workers are targeted for an I-9 government audit can be very convincing. On balance though, DHS has also extensively reported on I-9 fines imposed on organizations who did not hire any foreign workers. This myth is debunked.
Myth 2: Since my company is not in the restaurant, hotel, food service, construction or agricultural industry, my company probably won’t be targeted for a Form I-9 inspection by ICE.
FACT: One look at DHS’ press releases in the past year would lead one to believe that Form I-9 inspections only occurred in these industries. This is only a partial picture though for a few reasons. First, media outlets thrive on juicy, splashy headlines. The bigger the fine or the higher the number of unauthorized workers fired, the bigger the news story. Smaller fines don’t usually make it to a press release. Second, if you take a closer look at the news stories, there are numerous reports of organizations that fall outside the restaurant, hotel, food and agricultural industries. This would include clothing retailers, staffing companies and manufacturers (to name a few). Third, ICE has consistently and very publicly announced “waves” of Form I-9 inspections in the past three years. With this many Form I-9 inspections, news reports simply cannot cover them all. In fact, there is a consensus amongst immigration attorneys that the frequency of I-9 audits is applied to the entire workforce fairly indiscriminately. Fourth, not all I-9 settlements are publicly released. So, regardless of industries, all employers who are required to complete a Form I-9 for their employees would benefit from preparing themselves for an I-9 audit, however imminent that may be. This myth is debunked.
Myth 3: ICE targets small organizations, not large organizations with a sprawling workforce.
FACT: While Form I-9 inspections have predominantly affected small employers over the years, the tide appears to be turning with the establishment of the Employment Compliance Inspection Center. This I-9 audit mega-center in Crystal City, Virginia can handle the audits of large employers (1,000 + employees), thereby opening up a wealth of potential fines for ICE to collect. So regardless of whether you are large or small, you must fear the ICE man. This myth is debunked.
Myth 4: ICE already audited our company I-9 Forms, they won’t come back.
FACT: We were the first to report the announcement that ICE was going to revisit 500 employers it has already audited in the past three years. The potential to be fined again for not correcting prior Form I-9 errors remains very real. (Read the article here.) This myth is debunked.
Myth 5: There is no way to be immune from an ICE Form I-9 inspection.
FACT: As one of its benefits, the ICE Mutual Agreement between Government and Employers (IMAGE) Program allows enrolled U.S. employers to conduct business without the risk of a Form I-9 inspection for a minimum of two years. The program also provides additional training, fine mitigation, and public recognition by DHS. While technically enrolling in the program does not provide “immunity,” this reprieve is the closest thing. Employers should consult with legal counsel to determine if enrollment is appropriate. This myth is debunked (for now).
What other I-9 myths have you encountered and debunked? Please send me your comments and feedback.
Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions regarding planning I-9 audits as it relates to I-9 compliance, please contact an immigration attorney to obtain advice which is tailored to your unique situation.