Ensuring compliance with Form I-9 requirements is crucial for U.S. employers to verify the identity and employment authorization of their employees. The U.S. Immigration and Customs Enforcement (ICE) conducts audits to enforce these requirements, and understanding the process is essential for businesses to mitigate risks.

Best Practices for Preparing a Business for an ICE Audit:

1. Conduct Regular Internal Audits:

·         Regularly reviewing your Form I-9s helps identify and correct errors proactively. Ensure that all sections are completed accurately and that supporting documents are valid. ICE provides guidance on conducting internal audits to ensure compliance.

2.Implement Comprehensive Training Programs:

• Educate HR personnel and those responsible for hiring on proper Form I-9 completion and retention procedures. This includes understanding which documents are acceptable for verification and the timelines for form completion.

3. Maintain Organized Records:

• Keep Form I-9s and supporting documents well-organized and accessible. Federal regulations require employers to retain Form I-9 for each employee for three years after the date of hire or one year after employment ends, whichever is later.

4. Stay Updated on Regulatory Changes:

• Regularly consult official sources such as the USCIS I-9 Central and ICE websites to stay informed about any changes in Form I-9 requirements or procedures.

Steps to Take Upon Receiving a Notice of Inspection (NOI)

Review the NOI Carefully:

• Upon receiving an NOI, which informs employers of ICE's intent to audit their hiring records, review the notice thoroughly to understand the scope and requirements.

2. Gather Requested Documentation Promptly:

• Collect all Form I-9s and any other documents specified in the NOI. Ensure that the documents are organized and complete

3. Consult Legal Counsel:

• Engage with legal counsel experienced in immigration law to guide you through the audit process and to communicate with ICE on your behalf

4. Cooperate with ICE Agents:

• Maintain a cooperative attitude during the audit. Provide the requested documents within the specified timeframe, typically three business days.

Best Practices for Interacting with ICE Agents During the Audit Process

1. Designate a Point of Contact:

• Assign a knowledgeable individual to liaise with ICE agents. This person should be familiar with Form I-9 procedures and the company's employment records.

2. Provide Requested Documents Only:

• Submit only the documents specifically requested in the NOI. Avoid volunteering additional information that may not be pertinent to the audit.

3. Maintain Professionalism:

•  Ensure that all interactions with ICE agents are professional and courteous. Cooperation can positively influence the outcome of the audit.

Addressing Violations and Mitigating Penalties After an Audit

. Correct Identified Errors Promptly:

• If the audit reveals deficiencies, correct them as soon as possible. For example, if a Form I-9 is incomplete, have the employee provide the missing information and initial and date the correction

2. Implement Remedial Training:

• Provide additional training to staff to prevent future violations. This may include refresher courses on Form I-9 completion and document verification.

3. Negotiate Penalties:

• Work with legal counsel to negotiate any fines or penalties. Demonstrating good faith efforts to comply and taking corrective actions can help in reducing penalties.

Long-Term Practices and Compliance Measures to Prevent Future Issues

1. Adopt the IMAGE Program:

• Consider participating in ICE's Mutual Agreement between Government and Employers (IMAGE) program, which provides training and guidance on best practices for maintaining a lawful workforce.

2. Utilize E-Verify:

• Enroll in E-Verify, a web-based system that allows businesses to confirm the eligibility of their employees to work in the United States. This can enhance compliance and reduce the risk of hiring unauthorized workers.

3. Regular Policy Reviews: 

• Periodically review and update your employment verification policies to ensure they align with current laws and regulations.

By implementing these strategies, businesses can better prepare for ICE audits, address any identified issues effectively, and establish a robust compliance framework to mitigate future risks.

Employers are legally obligated to properly complete and retain Form I-9 for each employee to verify their identity and employment authorization. Non-compliance can lead to significant civil and criminal penalties, varying based on the nature and severity of the violations.

Penalties for Form I-9 Errors and Omissions

1. Technical or Procedural Violations:

• These include minor mistakes such as typographical errors or leaving a box blank. Employers are typically given ten business days to correct these issues upon notification. If uncorrected, they may be treated as substantive violations.

2. Substantive Violations:

• Errors like failing to sign the form, missing employment authorization documents, or not completing the form within the required timeframe are considered substantive. Penalties for these violations range from $281 to $2,789 per violation, depending on factors such as the employer's size, good faith effort, seriousness of the violation, whether the individual was unauthorized, and any history of previous violations.

Penalties for Hiring Unauthorized Workers

 1. First Offense:

• Fines range from $627 to $5,016 per unauthorized worker.

2. Second Offense:

• Fines increase to between $5,016 and $12,537 per unauthorized worker.

3. Third or Subsequent Offenses:

• Fines escalate to $12,537 to $25,076 per unauthorized worker.

In cases where an employer engages in a pattern or practice of hiring unauthorized workers, criminal penalties can be imposed, including fines of up to $3,000 per unauthorized employee and/or imprisonment for up to six months.

Mitigation Factors

When determining penalty amounts, authorities consider factors such as:

• The size of the business.
• The employer's good faith effort to comply.
• The seriousness of the violation.
• Whether the individual was an unauthorized noncitizen.
• The employer's history of previous violations.

Employers should regularly audit their Form I-9 processes, provide training to responsible personnel, and promptly correct any identified errors to maintain compliance and mitigate potential penalties.