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ICE, in a “fact sheet” available on its website, has made a significant change to the way it conducts I-9 audits. Specifically, ICE has broadened what it considers to be a “substantive” violation on an I-9. This change is likely to increase the financial penalties employers face during an audit, impacting all employers (including those who have already conducted an internal audit). This change to ICE’s protocol may signal increased enforcement in the coming weeks and months. 

Key Takeaways

In response to this change, employers should: 

  • Conduct an I-9 audit to determine potential penalties under the new guidelines and determine which, if any, substantive errors can be rehabilitated.
  • Conduct internal training to ensure the company has an established I-9 protocol and team to ensure the process is being completed accurately and in a timely manner.
  • Create a protocol for the handling of I-9 audits at the worksite should ICE issue a subpoena.

In more detail

The Immigration Reform and Control Act (IRCA), enacted on November 6, 1986, requires employers to verify the identity and employment eligibility of their employees and sets forth criminal and civil sanctions for employment-related violations. During an I-9 audit, ICE reviews the accuracy and completeness of an employer’s I-9s to determine the volume of: (i) missing I-9s; (ii) technical violations; and (iii) substantive violations. ICE must permit employers to correct technical violations before issuing a fine; a substantive violation is cause for a fine without opportunity for rehabilitation. Fines range from $288 to $2,861 per I-9 violation.

Continue Reading Changes to I-9 Penalties Increase Employer Liability

Trump’s immigration Executive Orders address “enhanced vetting” of visa applicants, birthright citizenship and border security, among other things. Likely increasing ICE enforcement actions, including employer site visits and raids at workplaces, one of the EOs establishes a new “Homeland Security Task Force” enabling federal, state and local law cooperation in removing undocumented individuals.

As part…

President-elect Trump’s announced (and rumored) Cabinet member selections confirm that immigration enforcement will be a top priority from day one. With less than two months before inauguration day, US employers should take action now to ensure they are compliant with immigration regulations, are prepared for worksite ICE (Immigration & Customs Enforcement) or DOJ (Department of Justice) raids or enforcement activity and are ready to respond to government investigations or employee complaints regarding the employment of foreign workers.

We recommend the following three steps:

1. Conduct an Internal I-9 Audit

We expect to see a significant rise in worksite inspection and I-9 audits from the incoming administration. All employers are required to verify the work authorization of all employees in the United States by completing and maintaining the Form I-9. Employers should conduct internal I-9 audits every 2-3 years to identify potential liability and make necessary corrections; conducting an internal audit with counsel is a helpful tool to protect the audit under attorney/client privilege. Immediate steps employers can take include:

  • Conduct an internal I-9 audit if one has not been completed in the past 3 years.
  • Review current protocols and conduct internal training to ensure a consistent and complaint work verification procedure and prevent future errors.
  • Review electronic platforms to ensure they are complaint with I-9 regulations and audit ready.
Continue Reading The Pre-Inauguration Playbook: Steps US Employers Should Take to Ensure Immigration Compliance as We Enter a New Era of Enforcement