Compliance Corner: ICE Policy on I-9 Audits

The policy of conducting extensive I-9 audits on a nationwide basis continues. On November 19, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country. This round of inspections is focused on employers associated with critical infrastructure. The employers were selected based upon investigative leads and intelligence and because of the businesses’ connection to public safety and national security.

In the same press release, ICE indicated that its newly-implemented enforcement strategy initiated on April 30 has already resulted in 1,069 Form I-9 Inspections and Notices of Intent to Fine (NIF) totaling nearly $16 million. ICE also provided a detailed fact sheet showing how it intends to calculate fines relating to I-9 violations. In summary, the fines levied will be based upon the severity of the error and the percentage of “problem I-9s.” For example, an employer that has made substantive paperwork errors (e.g., failing to sign the I-9) in 20 percent of its I-9s can expect a minimum fine of $440 per I-9. Certain good faith factors may be used to either reduce or enhance the fine amount. 

Anecdotal information suggests that ICE will be fairly aggressive in its fine determinations. Following up on the July 1 audit campaign of over 650 employers, 61 Notices of Intent to Fine have been issued for approximately $2.3 million in fines, or nearly $38,000 per audit. Another 267 audits are still in process while approximately half of the audits (326) resulted in no penalties being assessed.

Employers can expect an increased level of I-9 enforcement in 2010. One prudent New Year’s resolution for employers would be to conduct a self-audit of I-9 and overall immigration compliance efforts. The warnings regarding enforcement have been realized, but there is still time to minimize any potential negative impact.

Note: This article was published in the December 2009 issue of the Immigration eAuthority.