The Impact of Another I-9 Audit Wave on Employers

It’s been a while since we last wrote about I-9 audit waves conducted by the Immigration Customs Enforcement agency better known as ICE.  Recently, ICE has announced it would enforce another round (1,000) of I-9 audits.   Kevin Lashus and Amy Peck warned employers about audits earlier this week.

Longtime readers of this blog probably aren’t too surprised at the announcement, since it’s been presumed to be occurring with or without an announcement.  [It’s the equivalent of a California weather forecaster warning of the next earthquake.]

The real issue is not that an announcement was made, but how the next round of I-9 audits would affect your organization.  What are the chances of your organization incurring liability?  Here’s what we do know from all of the reports in the past few years LawLogix has conducted:

ORGANIZATION SIZE AFFECTS LIABILITY

Organization size affects liability in the tradition sense but also in non-traditional ways.  The number of individuals that an organization hires every year affects the total liability your organization may have after an ICE I-9 audit.  Even a small employer (less than 100 employees) may contain a few hundred I-9 forms if the employee turnover rate is high.  A good example would be a restaurant.

In certain instances, being a small employer has advantages.  The Office of the Chief Administrative Hearing Officer (OCAHO) has more often than not factored in the size of an employer as a mitigation factor for reducing I-9 penalties.

The danger of increased liability for I-9 non-compliance occurs when small employers assume the government won’t “go after them” because they’re small.  Though, many OCAHO cases and news reports tell a much different story.  Small employers should be on alert!

THE RED HERRING: UNDOCUMENTED WORKERS

Perhaps the biggest factor affecting employers these days is the big red herring of undocumented workers.  The misnomer by many news outlets that I-9 audits by ICE are “silent immigration raids” unduly influences how employers perceive I-9 audits (IMHO).

I-9 audits conducted by ICE have but a tertiary connection to enforcing immigration laws.  Its primary goal is to shift the current enforcement paradigm while simultaneously generate publicity and revenue for its enforcement actions.

It wasn’t until the past five years that I-9 audits began to increase because of its effectiveness in curbing employment of unauthorized workers.  By targeting employers through paperwork violation, ICE has successfully forced employers to comply with immigration laws.  The negative fallout from I-9 fines and the bad publicity surrounding I-9 investigations has motivated many employers to take a hard look at its I-9 compliance processes.

Though, for the uninitiated employers, there is still a notion that if the organization doesn’t hire foreign workers, I-9 compliance is a non-issue.  Not only is the red herring of undocumented workers at play here, it lulls these employers into a false sense of security.  After all, I-9 audits have transformed into a “paperwork” audit where ICE will impose penalties for any I-9 deficiencies even if every worker was a U.S. citizen.

Don’t let the red herring catch your organization off guard.

INDUSTRY MATTERS, SORT OF, OR NOT …

Some employers claim that they are being targeted for an I-9 audit by ICE because of the industry they are in (i.e.: agriculture, hospitality, service).  Other employers claim they are being targeted even though ICE had already conducted an I-9 audit of their records in the past.  Even others will swear that it was random and there was no rhyme or logic to how they were selected.

It’s probably all true!

ICE audit agents have broad authority to conduct an audit.  What triggers an audit can range in many ways: reports from disgruntled workers (former or current); reports from active citizens; reports from other law enforcement agencies; prior history of non-compliance; or complete random audits.

  • Employers who are in industries that have traditionally relied on large numbers of undocumented labor should take precautions to ensure their organization has implemented I-9 compliance protocols.
  • Employers who have been audited by ICE in the past for its I-9 records should absolutely ensure that it has taken measures to improve I-9 compliance training for its staff.  ICE imposes even heftier fines on repeat violators of I-9 rules.

With so much publicity about I-9 audits by ICE and penalties a variety of employers have faced in the past five years, this area of compliance is simply not one to overlook.  Our many attorney partners can provide assistance and our Guardian I-9 and E-Verify System provides an integrated solution for many employers read to upgrade to the electronic world and a better electronic system.