What is an ICE audit?

According to the Immigration Reform and Control Act of 1986, employers in the United States must complete an I-9 Form for each employee they hire after November 6, 1986.  The government regularly conducts audits, or a review, of employer I-9 Forms to ensure employers verify the employment eligibility of its newly hired workers.  In other words, employers must only hire workers who have legal authorization to work in the United States.  These audits are commonly referred to as an “ICE audit” because the Department of Homeland Security’s enforcement branch, the Immigration Customs and Enforcement (also known as ICE) conducts these I-9 audits.

Is an ICE audit the same as an I-9 audit?

Yes.  An ICE audit refers to the government agency, ICE’s, review of an employer’s I-9 Forms.  There is a step-by-step process of how an ICE audit of I-9 Forms occurs.  In this way, an ICE audit is one type of an I-9 audit. An “I-9 audit” is more general and refers to any audit of an employer’s I-9 Forms (either with the help of an immigration or employment attorney, on their own, or by ICE).  An employer can conduct an internal I-9 audit at any time and does not have to wait for ICE to request an audit.

What is the purpose of an I-9 audit conducted by ICE?

The purpose of an I-9 audit that is conducted by ICE is to detect the known employment of unauthorized workers by a U.S. employer.  I-9 audits also serve to detect if employers are discriminating against certain groups of workers based on their national origin or citizenship status during hiring, firing, recruiting or referring (for a fee).  The most common result from an ICE audit of an employer’s I-9 Forms is the discovery of errors on the I-9 forms that can lead to various monetary fines and other forms of lawful punishment by the government, including civil penalties and criminal prosecution.

Who should be concerned about an I-9 audit from ICE?

The law requires U.S. employers to complete an I-9 Form for every employee hired after November 6, 1986 who will be working in the United States.  This law applies to all U.S. employers.  Independent contractors are not required to complete an I-9 Form.  All U.S. employers have the potential of receiving an audit notice from ICE.   The potential parties that may be impacted from an ICE audit include the following:

a) Unauthorized Workers: these are employees who are not authorized to work in the United States who may be fired or leave the job as a result of an I-9 audit by ICE.

b) Authorized Workers: these are employees whose job duties may be adversely impacted as a result of their unauthorized co-workers being fired or leaving the job as a result of an I-9 audit by ICE.

c) Human Resource Professionals: these are employees usually in charge of completing and managing the I-9 Form process.  An ICE audit may impact how they complete and manage I-9 Forms in the future.

d) Company Executives: these are the high-level managers who may have to prepare for a civil fine or penalty, or a criminal prosecution from various government agencies.  The punishment could involve the payment of monetary fines, implementing certain policies, enrolling in the government’s online employment verification system called E-Verify, and/or having to serve time in jail.

e) Shareholders: these are individuals who own shares of a publicly traded company.  In the event of an ICE audit to results in extensive fines, penalties, jail time, or other adverse results affecting the company’s assets. The publicly traded company may also experience bad press and publicity.  Shareholders may experience a drop in the value of the publicly traded company’s stock.

What actually happens during an ICE audit?

An employer will receive a “Notice of Inspection” (also known as a NOI) from ICE.  This is usually delivered in person to the employer.  The NOI will contain instructions for which I-9 Forms an employer is to provide ICE. The NOI may also request additional paperwork (such as payroll records, letters from the Social Security Administration, a list of current employees, etc.) that may allow ICE Auditors to fully review the I-9 Forms.  The employer is allowed three days to provide the documentation requested in the NOI. Once produced, ICE has a team of forensic auditors who will evaluate all the documentation for errors.  ICE will then issue a Notice of Technical Deficiencies, indicating which I-9 Forms must be corrected within 10 days if the employer is to avoid a fine.  After the 10 days has elapsed, the employer will be assessed fines for errors that have not or cannot be corrected.  Fines can range from $110 to $1,100 for technical violations and much more for substantive violations.  ICE will issue fines in the form of a Notice of Intent to Fine (NOIF).

How can an employer prepare for an ICE audit?

An employer can prepare for an ICE audit by conducting an internal I-9 audit regularly, by implementing sound policy in managing its I-9 Forms, and by collaborating with legal counsel to ensure the policy is followed and personnel is appropriately trained.  Electronic software solutions that contain all the regulatory safeguards is another way to prepare for a potential ICE audit in the future.