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The ICE man cometh … with a notice of intent to audit

by on
in Centerpiece,Employment Law,Hiring,Human Resources

by Casey M. Nolan, Esq.

You may have noticed a slight chill in the air recently. For the second time this year, U.S. Immigration and Customs Enforcement (ICE) has notified 1,000 employers that it plans to inspect their Form I-9 Employment Eligibility Verification records.

The Notices of Intent to Audit (NOI) that were issued on June 15, 2011, bring the total number of companies audited by ICE to more than 2,300 for this fiscal year. That already surpasses last year’s record of 2,196.

According to a statement issued by ICE, the employers affected by this most recent round of audits were ­selected primarily based on tips and leads, although the agency says it ­remains focused on companies that provide critical infrastructure services, including the construction, agriculture, water treatment, health care and transportation industries.

Whether your company has received a NOI or you have been lucky enough to avoid one until now, it is important to understand what a NOI is and how it may impact your organization.

How an audit begins

The audit process starts when an ICE agent serves an NOI. In addition to I-9 documentation, the NOI typically requests other information, including:

  • A list of all current and former employees
  • Hire and termination dates
  • Payroll records
  • Quarterly tax statements
  • Copies of any immigration filings
  • Copies of any Social Security communications (including “no-match” letters)
  • Articles of incorporation
  • Information regarding independent contractors.

The timeline to respond to a NOI is short—usually three business days—although ICE is sometimes willing to provide a short extension.

What happens in an audit

Once the requested documentation has been turned over to ICE, an auditor reviews the records and notes any deficiencies in the employer’s I-9s.

If any technical or procedural irreg­ularities are found, ICE notifies the employer and allows 10 days to correct the errors.

Errors typically involve failing to ensure that the employee puts a date on Section 1, or neglecting to provide the business name and address in Section 2.

Unfortunately, however, employers do not get a chance to correct substantive I-9 violations. Those might include failing to reference a document number or relying on documents not listed as acceptable identity or employment authorization documents.

The difference between the two types of violations is that a substantive violation is one that is more likely to lead to the hiring of an unauthorized worker.

Penalties for violations

Employers are generally fined between $110 and $1,100 per substantive or uncorrected technical violation (the amount depends on the number of total violations). The total fine may be adjusted up or down based on the application of certain aggravating or mitigating factors.

In addition, if, during the course of an audit, an employer is found to have knowingly hired or continued to employ unauthorized workers, it will face additional fines. Also possible are criminal sanctions and debarment from future government contracts.

What employers must do

So, what is the take-away? Do not wait for ICE to darken your doorway before you take I-9 compliance seriously.

Employers should implement an effective and workable compliance plan for their organizations, including conducting regular I-9 audits, making any necessary corrections to forms, responding appropriately and quickly to Social Security Administration no-match letters and training staff who complete I-9s on proper procedures.

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Author: Casey Nolan is an associate attorney practicing in the Employment Law Group at Gray Plant Moody in Minneapolis. She can be reached at (612) 632-3279 or at casey.nolan@gpmlaw.com.

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