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The Form I-9 Audit Surge Continues with Over 5,200 I-9 Audit Notices in 2018

For employers, the dog days of summer have clearly arrived as Immigration and Customs Enforcement (ICE) continues its onslaught of Form I-9 audit notices and inspections throughout the US. Just yesterday, ICE issued another press release, outlining a dramatic increase in the number and breadth of worksite investigations. This latest news follows the Trump Administration’s renewed efforts to punish employers who fail to follow the rules for verifying their new hires’ eligibility to work in the US.

ICE puts up big numbers

According to the announcement, ICE has now issued over 5,200 I-9 audit notices (formally called “Notices of Inspection” or “NOIs” for short) since January 2018, and has opened a total of 6,093 worksite investigations since the beginning of the fiscal year in October 2017. Compare this number with the roughly 1,716 worksite investigations opened in the prior fiscal year, and you quickly get a sense of how much effort is being made to hold employers accountable.

And while ICE reserves the right to conduct Form I-9 inspections at any time, this latest surge reveals a coordinated plan to blanket the country with audit notices – when many employers and HR departments are short-staffed due to summer vacations. Just this past week, ICE served 2,738 NOIs nationwide, one of the largest waves seen in recent memory. Many employers and locations have been impacted, reinforcing the notion that all organizations can have an I-9 problem when ICE comes knocking on the door.

In this regard, Derek Benner, head of ICE’s Homeland Security Investigations likened the Form I-9 process to other requirements near and dear to employers’ hearts – federal tax filing and banking records:

“Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records. All industries, regardless of size, location and type are expected to comply with the law.”

While I-9s and taxes are rarely uttered in the same sentence by HR, one could certainly imagine a very similar reaction to both. If the ICE audits continue at this same pace, HR managers may soon be borrowing another famous phrase to bemoan that nothing in this world can be certain, except death and Form I-9 audits.

The War Against California

ICE also took the opportunity to once again criticize the state of California for one of its recently enacted immigration laws by highlighting a recent court decision that was rendered against the state.  As covered in our blog last year, the Immigrant Worker Protection Act (Assembly Bill 450 or AB 450 for short) prohibits employers from consenting to government agents’ access to non-public workspaces or to employee records (unless permitted by judicial warrant) and also requires that employers provide prompt notice to employees of any impending I-9 inspection. AB 450 also punishes employers for reverifying employees at a time or in a manner not required by federal law.

As noted in today’s ICE press release, the Department of Justice filed a lawsuit against the state of California, requesting that the court invalidate AB 450 and other so-called sanctuary laws on the ground, in part, that they are preempted by federal immigration law and are therefore unconstitutional. Earlier this month, the court ruled in the federal government’s favor (in part), enjoining California from enforcing all provisions of AB 450 except for the provisions relating to the Form I-9 employee notice. It is important to note, however, that this decision was merely a preliminary ruling, and a final determination will occur sometime in the future.

Employer Takeaways

Now more than ever, employers must be vigilant in their I-9 tasks and responsibilities, which necessarily involves reviewing (and dusting off) all of those historical I-9 forms to look for errors and omissions. During an I-9 inspection, you only have 3 short days to gather all of the required documentation, a process which can be especially difficult if you currently store your I-9 forms on paper at various locations. Moreover, employers must cope with an undeniable truth that’s consistent across most industries – no matter how good you think your I-9s may be, the vast majority will likely have one or more errors (which can get you into hot water).

Fortunately, there is a silver lining, because the law allows (and encourages) employers to conduct their own internal audits and correct mistakes and omissions, long before the NOI arrives at your doorstep.

While conducting an I-9 self-audit may sound like as much fun as having your teeth drilled (by someone who is not a dentist), there are a variety of strategies (and tools) available to ensure you follow the correct procedure. First and foremost, you should strongly consider working with experienced immigration counsel who can guide you in developing a remediation plan which addresses the most serious of violations first and ensures you follow all of the various rules for correcting past compliance mistakes.

At the same time, you can use a specialized electronic I-9 system which not only helps you identify all of the various errors or omissions (that may exist in your inventory of forms) but also provides a compliant (and automated) workflow for correcting those mistakes under the advice of counsel.

Need more information about Form I-9 auditing (or I-9s in general)? LawLogix is holding its second annual I-9 Palooza at CommunityLIVE – the premier event for learning about I-9 and E-Verify compliance from industry experts and HR peers. Check out our registration page and agenda here.


About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.

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