According to recent reports, the US Department of Homeland Security’s Immigration and Customs Enforcement (ICE) team has begun a new wave of illegal working audits, targeting employers in industries including fast-food, retail, hospitality and agriculture.  These new “silent raids” are consistent with the Administration’s strategy of targeting employers in lieu of worksite round-ups of unauthorized workers.

The audits consist of Notices of Inspection (NOI) or administrative subpoenas which command employers to produce, generally within no more than three business days, the I-9 employment eligibility verification form for all their active employees and those terminated within the past 1 to 3 years.  They can also require:

  • payroll reports;
  • quarterly tax statements (IRS 941);
  • prior correspondence from the Social Security Administration relating to social security number no-matches; and
  • evidence of participation in E-Verify or the Social Security Number Verification System.

After you receive a NOI or subpoena, remember:

  • ICE must provide at least 3 days’ notice to inspect I-9s.
  • Production of documents other than I-9s is voluntary unless served with a subpoena.  A subpoena can be challenged in Federal court.
  • Notify management and contact outside counsel immediately.
  • Do not alter or dispose of any I-9s.

What to do now:

  • Review or establish an I-9 compliance policy.
  • Conduct an internal I-9 audit.

Considering that I-9 related fines can range from $110 to $16,000 per violation and that the Government can also prosecute for criminal violations, retaining specialist outside counsel to assist with an audit or a compliance program is not only prudent but also cost effective.