The Other Audit to Fear!
Illegal Immigration and Your Business

By Sheri McWhorter

On July 1, 2009, the present administration and U.S. Immigration and Customs Enforcement (ICE) launched an aggressive new nationwide immigration enforcement initiative, issuing I-9 Audit Notices to 652 businesses across the country.  According to one ICE spokesperson, businesses in every state and industry were selected for audit, "from agriculture-related businesses, to service businesses, to high-tech industry and everything in between," based on leads received from ICE offices around the country.  The decision to issue 652 I-9 audit notices on the same day is especially significant given that ICE issued only 503 audit notices throughout all of FY2008.  According to ICE, the new enforcement initiative and I-9 audits are intended to remind businesses that "the integrity of their employment records is as important as the integrity of their tax files or their banking records.”

President Obama has ordered his administration to focus on employers who hire illegal immigrants, in contrast to the Bush administration which favored conducting workplace raids instead.  Under the Obama strategy and new enforcement initiative, ICE is concentrating on auditing employers suspected of knowingly employing illegal workers.  ICE has re-emphasized its commitment to seek criminal prosecutions of employers in lieu of civil fines, and has shifted Special Agents and investigative resources to pursuing criminal indictments against employers who knowingly hire or employ undocumented workers.

All employers must complete a Form I-9 for each individual hired for U.S. employment within three business days of the individual beginning work.  In completing the I-9, the employer must review and record the individual's identity document(s) and determine whether the document(s) reasonably appear genuine and related to that individual.  The completed I-9’s must be retained according to a mandatory retention period.  Temporary employment authorizations must be re-verified before they expire.  Because Form I-9’s must be made available for inspection upon request by representatives of ICE and/or the U.S. Department of Labor, for easier retrieval, businesses should consider retaining completed I-9’s separately rather than inside individual employee personnel files.  A business receiving an I-9 Audit Notice has just three business days to produce completed I-9’s for each of its employees.  Where the business must search individual personnel files to retrieve the completed I-9’s, the collection process tends to be much more burdensome.  Once the business has collected and produced its completed I-9’s, ICE agents and auditors will inspect the I-9 forms, looking for missing I-9’s and for missing or suspicious documents.  Violations could lead to criminal or civil penalties, or to a full-blown ICE criminal investigation.

Under the new enforcement initiative, the issuance of an I-9 Audit Notice is the first step in determining whether ICE will launch a criminal investigation and prosecution of your business.  Even if you avoid a criminal investigation, if I-9 violations are found, you could face significant civil fines, especially given that each error on an I-9 counts as a separate violation.

If your business receives an I-9 Audit Notice, act promptly, taking measures to help avoid a more serious criminal investigation resulting from the audit.  Above all, seek competent legal counsel.  Once an I-9 Audit Notice has been issued, federal regulations govern how and when the company may correct errors discovered while preparing for the audit.  Company representatives must strictly comply with these regulations, and must refrain from taking any action that may be viewed as intentional tampering of the Form I-9s and supporting documents.  Although it is important to be cooperative during government audits, serious consideration should be given to who should communicate with ICE agents on behalf of the business, and the extent of any such communications.  Confer with your legal counsel to determine whether it is preferable to have the audit conducted on or off Company premises.

Businesses should not feel intimidated by the possibility of an I-9 Audit, however, they should take steps to prepare.  Consider conducting an I-9 audit to assess your company’s compliance, and taking necessary corrective actions now.

About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is President and Managing Shareholder of WorkplaceLegalSolutionsSM, Law Offices of Sheri D. McWhorter, P.A.  With offices in St. Petersburg and Tampa, WorkplaceLegalSolutions provides employee relations counseling and proactive employment law solutions to businesses and non-profits throughout Florida and the greater Tampa Bay area.  For more information, contact Ms. McWhorter at 813.321.7383 or 727.388.5383, or visit WorkplaceLegalSolutions on the web at www.workplacelegalsolutions.com.