Facing an I-9 audit (or I-9 inspection) can present substantial risks for employers of all sizes. Employers that are not in compliance with the federal requirements for verifying employees’ work eligibility can face steep penalties, and ICE has become increasingly aggressive in enforcing immigration compliance under the second Trump Administration.
With this in mind, knowing what to do (and what not to do) when facing an I-9 audit is essential. Here are some tips from the New York I-9 audit defense lawyers at Bell Law Group.
10 Tips for How to Handle an ICE I-9 Audit in New York
DO: Locate All I-9 Forms and Other Relevant Employment Records
When facing an I-9 audit, a key first step is to locate all of your company’s I-9 forms and other documentation related to verifying employees’ work eligibility and immigration status. This will allow you to promptly conduct an internal I-9 compliance assessment (as discussed in greater detail below), and it will also ensure that you do not face unnecessary consequences as a result of failing to provide available documentation to ICE.
DO NOT: Provide ICE with Unfettered Access to Your Company’s Employment Records
While it is important to gather all relevant documents, it is equally important not to provide ICE with unfettered access to your company’s employment records. Unless otherwise advised by your company’s counsel, generally speaking, you should not provide ICE with more access than is strictly necessary to comply with the law.
DO: Conduct an Internal I-9 Compliance Assessment
After locating your company’s I-9 forms and other relevant documents, you will want to engage outside counsel to promptly conduct an internal I-9 compliance assessment. The purpose of this compliance assessment is to determine what issues (if any) ICE is likely to uncover during its I-9 audit. Knowing what issues (if any) ICE is likely to uncover will allow you to make informed and strategic decisions about how to handle the audit process.
DO NOT: Overlook, Ignore, or Attempt to Justify Any I-9 Compliance Issues
When conducting an internal I-9 compliance assessment, the goal should be to gain a clear, comprehensive, and accurate understanding of your company’s risk. You should not overlook, ignore, or attempt to justify any I-9 compliance issues at this stage. Once you have conducted a real-world risk assessment based on all relevant facts, then you can focus on figuring out the best approach to steering your company’s I-9 audit toward a favorable resolution.
DO: Instruct Employees on How to Conduct Themselves During the Audit
With an I-9 audit looming, it is important to ensure that your company’s employees have a clear understanding of both what to expect and how to conduct themselves during the audit. If any of your company’s employees lack a clear understanding of their role in protecting the company’s interests during the audit process, any inadvertent mistakes could prove to be very costly.
DO NOT: Authorize ICE to Communicate with Your Employees
Generally speaking, employees should be instructed not to communicate with ICE directly. If they receive any inquiries from ICE agents, they should be instructed to refer these inquiries to the company’s legal counsel. In this same vein, it should be made clear that ICE agents are not authorized to communicate directly with any of the company’s employees.
DO: Oversee and Play an Active Role in the I-9 Audit Process
Companies that are facing I-9 audits should oversee and play an active role in the audit process. Companies should rely on their legal counsel to ensure that ICE agents do not overreach beyond their legal authority, and they should rely on their legal counsel to identify and address any issues that arise during the I-9 audit.
DO NOT: Improperly Interfere With ICE’s Inspection
While it is important to play an active role in the I-9 audit process, this does not mean interfering with ICE’s inspection. If ICE agents attempt to overreach or engage in other illegal conduct, the right approach is to rely on the company’s counsel to intervene and take legal action as warranted. Improperly interfering in an I-9 audit, particularly by trying to prevent ICE agents from accessing records they are entitled to review, can prove to be a costly mistake as well.
DO: Make Informed Decisions About How to Handle Any Enforcement Risks
If your company is at risk of facing penalties due to non-compliance, you will need to work closely with your company’s legal counsel to make informed decisions about how to handle any potential enforcement action. Here, too, a proactive approach is generally best, though the specific steps that a company should take when facing I-9 enforcement depend on the specific circumstances at hand.
DO NOT: Make Assumptions About Potential Outcomes of the I-9 Audit
Finally, when facing an I-9 audit, it is important not to make any assumptions about the audit’s potential outcomes. Even if you are confident in your company’s I-9 compliance program, you should not assume that the audit will end without further consequences. Likewise, if you have concerns about your company’s I-9 compliance program, you should not assume that enforcement is a foregone conclusion. Even in this scenario, you may have various options for targeting a resolution that avoids unnecessary consequences.
To be clear, these are not the only steps to take (and mistakes to avoid) when facing an ICE I-9 audit. Facing scrutiny from ICE can present substantial risks, and an informed, strategic, and custom-tailored approach is required. If your company has received a Notice of Inspection (NOI) from ICE, you should engage experienced defense counsel promptly.
Speak with a New York I-9 Audit Defense Lawyer at Bell Law Group in Confidence
Bell Law Group provides experienced legal representation for companies facing I-9 audits in New York and beyond. To speak with one of our senior New York I-9 audit defense lawyers in confidence as soon as possible, call us at 516-280-3008 or tell us how we can reach you online today.
