Surviving ICE (Immigration and Customs Enforcement) Audits | DCR Workforce Blog

Surviving ICE (Immigration and Customs Enforcement) Audits

IFCO Systems North America paid $20.7 million while many IFCO managers pleaded guilty to criminal charges for I-9 violations and faced prison sentences which were remitted later in a plea deal. Abercrombie & Fitch Stores were fined over $1 million dollars for I-9 violations though all their employees were legal! The issue was that their Michigan branch  – which employed a 3rd party to electronically store their I-9’s –could not retrieve them due to a glitch in the third party’s system. Big or Small, businesses are forced to conform or pay the price for having even a single undocumented worker on board, or for having misfiled the I-9 documentation or even for not having filled all the sections of the one page I-9 form.

ICE has stated that 99% of I-9s have errors in them and that on an average there are 5 errors per I-9! Legal requirements may sometimes defy common sense interpretations and convenient practices; so it is very important to avoid complacence in the matter. It is important to recognize that too much of documentation could also bring charges from ICE – on grounds of discrimination.

Essential Facts:

Immigration offences are not limited to the purview of only the federal government anymore but being punished by the respective state governments too; which could result in the revocation of the offender’s business license, tax license, or any other license. Against this stringent enforcement policy, employers today are relying upon instituting certain process steps which incorporate some essential facts to ensure that they are protected from exposure in case of an ICE (Immigration Customs Enforcement) audit:

  • A written compliance policy must be in place to meet the requirements of both federal and state regulations and emulation the best practices recommended by ICE.
  • No assumptions to be made about the status of an employee’s documentation and a system of verification.
  • Need to seek competent advice and periodic reviews from outside experts; to validate practices and to spot inadvertent errors. Leaving the I-9 in the hands of pay roll companies or HR teams may prove a costly leap of faith, unless these teams are trained by an agency – with a track record of I-9 filing, attested to by a satisfied clientele.
  • It helps to use the electronic I-9 system and its intelligent compliance monitoring tools, for completing the I-9 and integrate the information with the e-Verify system.
  • One must not wait for ICE audit to happen, to verify if the organization is in compliance or not!
  • Employers are liable for the I-9s of the independent contractors employed by them.
  • It is important to keep all relevant and supporting documentation (with subsequent submissions of re-issued documents like driving licenses etc) with the employee’s I-9 file.
  • Ensure that all sections of the I-9 document are completed in an appropriate manner and not left incomplete.

There are some other points which may not be required by all employers, but are worthy of note, should the need arise:

  • Refugees and asylum seekers in the US are authorized to work indefinitely whether they have DHS-issues work authorization documents but must complete an I-9 like every other employee.
  • Mismatches between Social Security Number and employee name do not automatically mean that the employee is not authorized to work in the US – but the potential possibility of identity theft cannot be ignored and the notice requires further action and reference to further guidance in the matter.
  • Qualified individuals from designated countries may be granted a temporary immigration benefit for a period of time (which may be extended) on account of conditions like on-going armed conflict, environment disaster or other issues with their native country.

Is using Electronic I-9 a Best Practice?:

Using an electronic I-9 form provides the following benefits in the management of an I-9 :

  • Automates the management of I-9, with fields being pre-populated from other HR programs.
  • Keeps pace with changing federal and state legislation and improves compliance and provides reports cutting across the data .
  • Improves productivity and enables efficiencies with visibility into the program and control over it.
  • Scanning and uploading supporting documents is simplified.
  • Reduces paperwork and filing and storage requirements.
  • Data entries are reduced and documentation completed in a proper manner.
  • Workload gets reduced with the employees handling some of the self-service options, and help features in the program clarify aspects of the information to be provided.
  • Keeps track of documentation updates, and enables search and report functions.
  • Instant verification of eligibility for employment using DHS e-Verify gets simplified.
  • All documents get stored in a single location and can be viewed, printed, downloaded, or e-mailed in seconds and can get deleted when obsolete.
  • Re-verification requirements get automated precluding any chances of inadvertent failure to comply.
  • Advance email alerts bring reminders, to both employers/employees, to replace expired documents with new ones.

It is important to pick a really reliable program which is compliant with USCIS guidance and employ the requisite due diligence methods before relying on it to help with one’s compliance on I-9 requirement as a deficient program could land one in deep problems, as demonstrated by many who adopted such faulty programs.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.