What You Should Expect During an ICE Audit

Your company just received a Notice of Inspection from the U.S. Immigration and Customs Enforcement (ICE) office. Why did it happen and what will happen next? While you may feel a reasonable amount of trepidation, it’s important to keep your head clear, prepare for what’s to come and know how to deal with the agents handling the process. Don’t panic. Here’s what you should expect during an ICE audit.

Why Did It Happen?

You probably received a Notice of Inspection (NOI) for one of several reasons. Often, an employee, whether currently working for you or recently separated, makes a complaint to the department. This complaint might be about alleged corporate crimes, unfair treatment, not getting a job or about the company’s hiring of undocumented workers. A competitor may also file a complaint if they suspect issues with whether you’re hiring undocumented workers. The Department of Homeland Security may want to investigate because multiple employers in your area may be hiring without confirming workers’ citizenship or immigration history. These are just a few individuals, groups, and organizations that may request an investigation into a company’s hiring practices and compliance with the Immigration Reform and Control Act of 1986.

What Does the I-9 Form Do?

You shouldn’t have anything to worry about if you’ve been using the I-9 form properly with all your new and ongoing hires. The I-9 form verifies that employees are who they say they are, particularly in their ability and authorization to work in the United States. All employers and jobseekers must complete and submit the form for each potential new hire, along with proof of status. This requirement goes for both US citizens and people from elsewhere seeking employment. After an individual submits the form, it should take no more than a day or two to verify the jobseeker’s status. Once that happens, the hiring process can proceed, the company hires the person, and everything should proceed per usual.

What Happens When You Get an NOI?

We’ve covered a few of the reasons why you might get a NOI. Again, you should be okay if you’ve followed the rules with the I-9 form, but you’re not out of the woods yet. You should prepare yourself and your company if circumstances still demand a full and comprehensive inspection. First, you’ll receive the NOI from ICE. This notice gives you 72 hours to organize your records for evaluation. Sometimes ICE won’t give notice and may instead serve a subpoena or issue a warrant to seize all records relating to the issue. The notice will indicate what ICE expects from the employer, how extensive the audit will be and what it will cover, and how ICE plans to conduct the inspection. It may be in person, but it’s more likely that they’ll request documentation by mail.

What Happens Next?

Let’s say ICE conducts the inspection and finds a discrepancy or other issue. Well, several things can happen. You will receive a written notice indicating what the audit discovered. It will indicate whether you’re compliant, allowing you to take a breath and relax. On the other hand, some notices may outline how the company failed to comply, listing the respective violations. Notices of Inspection frequently list the following violations (it’s worth mentioning that if a company acts in good faith and works to correct any issues or errors, the process will go better for them):

Suspect Documents

ICE will indicate that an employee does not have the proper authorization to work. Continued employment will lead to penalties.

Discrepancies

They could not verify an employee’s or employees’ identity or identities. Therefore, ICE may request extra documentation.

Technical or Procedural Failure

Errors or technical violations in documentation which your company must fix on the form within 10 days, otherwise the company will receive a fine.

Warning Notice

Technical and procedural issues that may not face fines or sanctions, but which the company must correct within 10 days.

Intent to Fine

ICE has found the company has provided erroneous information and hired unauthorized workers. They require a hearing before an administrative law judge that the company must arrange within 30 days. ICE will issue a Final Order and they will levy all charges and fines with no chance of appeal if the company fails to comply.

What Sort of Fines Can You Face?

As mentioned above, ICE will look favorably at companies that work in good faith and are willing to assist with the audit and make any corrections. Still, ICE calculates fines according to the number of violations, uncorrected forms, continually wrongful hiring practices, and so forth, which they divide among the forms that the company must present for the inspection. Predictably, first offenses are potentially fined much less than second or third ones. Business size, past behavior, and so on can also have a hand in determining fines, which can be anywhere from a few hundred to thousands of dollars.

What Can You Do?

That’s the gist of what you should expect during an ICE audit. The best way to handle an ICE audit is to ensure it doesn’t happen. Always follow protocol and fill out the appropriate forms for all new and potential hires. Submit them on time and follow up if you experience any delays. A good idea is to perform yearly mock audits. Keep your employee documents in order, with paper copy backups just in case. Check for errors and trust but verify with employees to ensure their status is up to date in your system. You can always contact U.S. Citizenship and Immigration Services if you have any questions. It’s also excellent practice to appoint someone in HR as an I-9 authorized representative. Ensure they receive regular training and stay in touch regarding changes and new developments in the system and form.

You can also contact us for a consultation if you have any questions about I-9 forms, I-9 employment verification, background checks, and the like! We’re ready to offer solutions, ensuring you’re hiring the best and most qualified individuals for your positions. Contact us today. We look forward to hearing from you!