One type of enforcement activity which is on the rise relates to I-9 audits. As recently as Jan. 17, 2008, ICE announced that it would begin conducting more I-9 audits than ever before. In such an audit the government agents, whether from ICE or Department of Labor, actually come on site at the workplace and review the I-9 employment eligibility documentation for all workers. Historically the government has by its own regulations provided 3 days advance notice of an audit, but it can bypass this notice period by getting a search warrant. It is also possible for the employer to waive the three day notice period and some employers have reported that they have come under some pressure from the agents to do so. While the employer may be flustered and will want to appear cooperative, it is rarely a good idea to waive the 3 day notice. The notice period can be put to good use in reviewing and assessing.
The employer will want to be sure it has an extra copy (scanned or otherwise) of the I-9s. If the government ends up taking the I-9s and then later complains about certain deficiencies, the employer will be at a disadvantage if it did not keep a copy of the forms. One of the things a company should do during the 3 day notice period is to make sure it has a copy of all the I-9s.
While the audit is underway the company may want to consider having legal counsel act as liaison with law enforcement and government agencies rather than to have the employees on the front lines providing information directly. It is possible to put the attorney client privilege to good use here. I recommend to document with a memo (written that day) exactly what happened during the encounter with the government agents, what documents may have been taken, and what statements were made, etc.
As mentioned above the agents may arrive with a warrant if there is a suspicion that the employer has engaged in violations. If this happens rule number one is for the company to not obstruct the agents. The company should let the agents in, get out of their way, and call its lawyer. Getting argumentative or delaying access could result in an arrest. The place to contest the warrant is in court, not at the front door. The company should be cooperative, but not volunteer information.
While the audit is underway it is best to place the agents in a private room with a representative of the employer or the employer's counsel present, so they can sit with the agents while the records are reviewed and answer or deal with questions which might arise. It is also possible under the regulations to offer to produce the documents at the nearest ICE office. Although the agents may view this as a delay tactic it might still be an attractive option if the company premises do not allow for a private place for the agents to review the documents.
Following the audit the government has several different approaches it might take. First, it is always possible that the audit could go well. But if there are violations found the response could be everything from warning letters; to the issuance of a notice of an intent to fine; all the way up to criminal actions. If a notice of intent to fine is issued the employer has a right to request a hearing before an administrative law judge.
There are a wide range of possible fines to which an employer may be subjected. Section 274A(e)(4) of the Immigration and Nationality Act and 8 CFR section 274a.10(b) set forth certain penalties for employers which are found to have knowingly hired an unauthorized alien. Effective March 27, 2008 civil penalties for first time offenses will be from $375 to $3,200 (per unauthorized alien), up to a range of $11,000 to $16,000 after the second offense. If there is a pattern of prohibited behavior shown, then in addition to civil penalties there can also be a $3,000 criminal fine for each unauthorized worker, plus up to 6 months jail. 8 CFR section 274a.10(a). Another significant penalty is that violators can be barred from procuring government contracts for one year. All of these fines are for knowingly employing undocumented workers. If the company is not charged with that, but rather is simply being charged with a failure to comply with the I-9 paperwork requirements, then there is a different sliding scale to be used for fines. For these violations employers may be subjected to a fine of not less than $110 to $1,100 for each first time paperwork violation occurring after September 9, 1999. There is some good news to report with regard to the I-9 paperwork violations. Where an employer demonstrates that a good faith effort has been made to comply with the various paperwork requirements, it should be given the opportunity (10 days) to correct mere technical or procedural mistakes on the I-9 form, and thereby avoid any fines. See section 274A(b)(6) of the Immigration and Nationalities Act.
The fines mentioned above, whether for knowingly employing an unauthorized alien, or for the I-9 paperwork violations, involve a wide range of possible fine amounts. The government has discretion within that range. Factors to consider when determining where to place the fine include the size of the company, the seriousness of the violation, whether the worker in question is in fact unauthorized, and any history of previous violations by the employer.