Reports confirmed to Ogletree Deakins by an official from Immigration and Customs Enforcement (ICE) indicate that an initiative commenced on September 15 will result in over 500 new Notices of Inspection (NOIs) being issued to employers across the country. NOIs inform employers of the initiation of an I-9 audit and typically require employers to be ready to provide I-9 documents in as little as three days. While ICE I-9 audits are often initiated based on leads, for example a tip regarding a particular employer that allegedly hires unauthorized workers, any employer can be the subject of an I-9 audit.

ICE once again is following through on the policy announced in April 2009 that “focuses resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers.” After that announcement, there have been three major rounds of audits: (1) a reported 652 audits in June 2009; (2) 1,000 NOIs, which were issued in November 2009; and (3) another round of 180 NOIs, which were issued in five southern states on March 2, 2010.

ICE provided a detailed fact sheet last November 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.

Based on ICE’s announced policy, formal and informal statements from government officials, and the number of I-9s audits initiated over the past 18 months, one can expect the pattern of enforcement to continue. Employers are urged to review I-9 policies and consider a self-audit of I-9 records – activities that may well result in a reduction in penalties in the event of an I-9 audit.


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