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Form I-9 Audits

As an employer in the United States, you are required to complete Form I-9 for each employee who works for you. According to the United States Citizenship and Immigration Services (USCIS), Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. These documents are subject to audits that are performed by United States Immigration and Customs Enforcement (ICE) agents. The Form I-9 inspection process is as follows:

  • Notice of Inspection (NOI)
  • Inspection of I-9 Forms
  • Issuances of Notice of Suspect Documents or Notice of Discrepancies
  • Issuances of Technical and/or Substantive Violations, otherwise issuance of Compliance
  • Issuances of Warning Notices and/or Notice of Intent to Fine (NIF)
  • Settlement or Office of the Chief Administrative Hearing Officer (OCAHO) Hearing

ICE agents must notify the employers at least three days in advance prior to the audit so they have ample time to prepare the necessary documents. Typically, ICE agents also request to see supporting documentation of employment, such as copies of payroll and lists of current employees, among others. Once the I-9 Forms and other requested documents are produced, the inspection process continues.

After the inspection process, ICE agents are required to notify the employer of the results in writing. There are three types of notifications you can receive:

  • Compliance letter
  • Notice of suspect documents
  • Notice of discrepancies

A compliance letter states that the employer has properly adhered to the United States immigration and employment laws. A notice of suspect documents states that the employee is not authorized to work in the United States and must be removed from their position; otherwise, the employer will face civil or criminal penalties. A notice of discrepancies states that ICE agents were unable to determine if the employee is eligible and the employee must provide additional documentation to prove their employment eligibility.

The next step in the verification process is the issuance of technical or substantive violations. A technical violation must be corrected within ten days of notice, otherwise, it becomes a substantive violation, which potentially carries harsh penalties.

The results of a substantive violation can either be a warning notice or a notice of intent to fine (NIF). A warning notice is simply a warning to the employer that the violation does not warrant any substantial monetary fine, though compliance is expected. A notice of intent to fine may be issued if there are substantive violations or uncorrected technical violations, or if the employer knowingly hired an illegal immigrant without the proper paperwork or if the employer continued to employ such immigrant. Fines for first-time violations for substantive or uncorrected technical violations range from $220 up to $1,862. For being a first-time violator of knowingly hiring an illegal immigrant and/or continuing to employ such immigrant warrants fines ranging from $548 up to $3,726.

If a notice of intent to fine is issued, the employer can either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO) within 30 days of receiving the notice of intent to fine. The case will then be assigned to an Administrative Law Judge (ALJ) to hear the case.

The auditing of I-9 Forms has been more prevalent under the Trump administration. ICE has stated that it plans to conduct up to 15,000 Form I-9 audits per year. With this, employers must be sure to have properly filled out their employees’ I-9 Forms and must be prepared for a randomly selected audit. If you are an employer who is subject to a Form I-9 audit or you are an employee concerned with undergoing such audit, it is imperative that you contact an experienced New York immigration law attorney.

Employers have rights and must train their reception staff on how to deal with ICE agents who often come unannounced and not only ask for the I-9s but also ask if they can enter the premises and talk to employees. There is no need to give ICE consent and staff members need to understand that they are not authorized to allow an on-site inspection without a judicially endorsed warrant. Knowing your rights is key.

The New York immigration lawyers at Bretz & Coven, LLP have years of experience representing clients in complex immigration cases, including employment verification cases. With two immigration law offices located in New York City and Clark, New Jersey, the firm’s attorneys are available to assist individuals throughout the tri-state area with their immigration matters. For more information or to schedule a consultation with our New York City immigration lawyers, call (212) 267-2555 or fill out our contact form.

Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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