ICE audits of employers’ I-9 forms will continue to increase in the coming years, so now is the time for employers to get ready. John Morton, the Director of ICE, recently spoke at the Worksite Immigration Compliance Symposium at Stanford School of Law.
Director Morton was accompanied by a host of secret service officers. The room was full so we found ourselves on the dreaded front row trying to eat our lunch and not make any sudden moves that may be interpreted by the secret service as some hostile act.
Director Morton’s message to the crowd was clear-ICE audits of employers will continue to increase in the coming years so employers better get their houses in order. The “silent raids” involving the inspection of I-9 forms and issuance of fines for errors on such forms have no end in sight. Since an employer has only three business days to turn over the I-9 forms after being served with an ICE notice of inspection, an employer’s decision to just wait and see is extremely risky.
We know from our internal audits of employers that the error rates often range between 50%-75%. If you multiply the I-9 forms with errors by a possible fine of $1100, that is big money at issue. Then there is the potential for negative press. Even if the employer had no unauthorized workers, the headline might state something like, “Company fined for Immigration Violations.” Such a headline implies something much more than just a paperwork problem. Why take this risk when there are ways to clean up and get ready for the time when ICE comes knocking?
The good news is that Director Morton and ICE are not keeping their intentions secret. They are providing clear warning that more audits are coming.
What can employers do?
- Obtain experienced legal counsel to audit and provide guidance on correcting their I-9 forms during the relevant retention period. Self-audits often lead to more problems.
- Develop compliant standard operating procedures to avoid future errors and ensure compliance in all immigration areas.
- Review the available guidance provided by the government, including the M-274 Manual for Employers, and the M-396 Guide to Selected U.S. Travel and Identity Documents. Warning: the guidance provided by the government does not answer all the questions and sometimes is confusing or even conflicting.