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ice auditAccording to a press release by the U.S. Immigration and Customs Enforcement (ICE); as of July 2018 they had delivered more than 5,200 I-9 audit notices to companies in the United States. While ICE audit notifications are a bit different than tax audits, they should be taken just as serious. If your business gets audited by ICE are you prepared? This article explores what to expect if you do get served an ICE notification and how you can protect yourself before, during, and after an audit.


Pre-Audit
Yes, you read that right. There are a number of steps you can take to ensure your company is prepared in the wake of an audit. The first thing you should (prior to reading this article) is to check that you’re using the correct I-9 form. While this may seem trivial, companies have been penalized in the past for using outdated forms. 

Next, it’s important to speak to an attorney, preferably one who has experience with Form I-9 audits. If necessary, have him or her conduct an internal audit of your employees’ I-9 Forms. From there you can come up with a game plan with your attorney and your human resources department if you do get audited. One example is to speak to your employees about what the correct protocol is if ICE shows up at your establishment. It could also mean posting signs that state which areas are private and which are public (ICE is allowed to enter any public space but may only enter private spaces with a warrant or permission by the employer).

Initial Audit
Even if you take every precaution necessary, being investigated by ICE has caused many sleepless nights for employers across the country. ICE will start by serving you with a  “notice of inspection.” From there you have three days to hand in all of your employees’ I-9 forms. This could also include any former employees that have worked at your establishment within the past year.  While you do have the ability to hand in the forms instantly – DO NOT. Once ICE leaves your premises call your lawyer immediately. From here, your attorney can direct you on what to do. Likely, s/he will advise you to make copies of all of your I-9 forms and ensure none of the forms are missing.

In the best case scenario once you hand in the I-9 forms you will receive a “Notice of Inspection Results” or a “compliance letter” that will notify you that you are found to be in compliance. Congratulations! Let out a sigh of relief and pour yourself a stiff glass of whiskey.

Unfortunately, for many businesses they do not get off that easily and instead get served with one of five other notices which will more than likely end up with some type of penalty. For first time violators this could mean a fee between $548 to a maximum fee of $3,726.

The five other types of notices that companies could receive after handing in their I-9 forms include:

·         Notice of Suspect Documents – This notice advises the employer that an employee is unauthorized to work in the United States and penalizes him or her for employing them. An employer does have the chance to provide additional documentation if they believe this notice was sent in error.

·         Notice of Discrepancies This notice warns the business that they have one or more employees in which ICE is unable to determine whether or not they are legally allowed to work in the United States. It is up to the employee to provide additional documentation.

·         Notice of Technical or Procedural Failures – This notice advises a company that they have one or more technical violations. The employer has ten business days to correct the violations or run the risk of receiving a more serious violation.

·         Warning Notice – This notice is given when violations are found, but are not serious enough to warrant a penalty.

·         Notice of Intent to Fine – This notice is to advise the employer that they will be issued a penalty for knowingly hiring a person who is not eligible to work in the United States. If you receive this notice you have 30 days to either reach a settlement with ICE or contest the notice by scheduling a hearing with the Office of the Chief Administrative Hearing Officer.

After the Audit
Depending on what notice you were served, the most important thing to do, is to learn from the audit and correct any mistakes or violations to ensure any future audits end with a Notice of Inspections Results. Last modified on Monday, 21 January 2019
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Danielle Loughnane

Danielle Loughnane earned her B.F.A. in Creative Writing from Emerson College and has currently been working in the data science field since 2015. She is the author of a comic book entitled, “The Superhighs” and wrote a blog from 2011-2015 about working in the restaurant industry called, "Sir I Think You've Had Too Much.” In her spare time she likes reading graphic novels and snuggling with her dogs.

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