U.S. Immigration and Customs Enforcement (ICE) conducts I-9 audits (or I-9 inspections) to assess employers’ compliance with the federal requirements for confirming employees’ eligibility to work in the United States. When facing an I-9 audit, employers must quickly prepare as thoroughly as possible, and they must make informed decisions about how to approach the audit based on the risks involved. This involves understanding the potential outcomes of the I-9 audit process.
Similar to other types of federal compliance audits and inspections, I-9 audits can have outcomes ranging from confirmation of full compliance to the imposition of civil fines and other penalties. Increasingly, unfavorable I-9 audit determinations can expose employers (and their executives and personnel) to criminal investigations as well. This article provides a brief overview of the potential outcomes of an I-9 audit, along with some insights for avoiding unnecessary consequences.
7 Potential Outcomes of an I-9 Audit
Generally speaking, I-9 audits have seven potential outcomes. Depending on the circumstances, some of these outcomes can lead to additional steps, while others will represent a final resolution (subject to the right to file an appeal, if necessary). The potential outcomes of an I-9 audit are:
1. Notice of Inspection Results (“Compliance Letter”)
If an I-9 audit confirms compliance with an employer’s federal work authorization verification obligations, ICE will issue a Notice of Inspection Results. This is also referred to as a “Compliance Letter.” Receiving a Notice of Inspection Results is the best-case scenario, as it means that ICE has determined further action is not warranted.
2. Notice of Suspect Documents
If an I-9 audit uncovers alleged deficiencies in an employer’s documentation, ICE may issue a Notice of Suspect Documents. This notice specifically relates to alleged inconsistencies between employers’ I-9 records and employees’ identities. As ICE explains, a Notice of Suspect Documents, “provides the employer and employee(s) an opportunity to provide documentation demonstrating valid U.S. work authorization if they believe the finding is in error.” Crucially, however, as ICE also explains, a Notice of Suspect Documents advises the employer of the “possible criminal and civil penalties for continuing to employ unauthorized workers.”
3. Notice of Discrepancies
If ICE is unable to confirm any employees’ eligibility to work in the United States after reviewing an employer’s I-9 files and other employment records during an I-9 audit, it will issue a Notice of Discrepancies. Here, too, employers have an opportunity to respond, but if they are unable to do so effectively, they can potentially face civil penalties or a criminal investigation.
4. Notice of Technical or Procedural Failures
As its name suggests, a Notice of Technical or Procedural Failures, “[i]dentifies technical or procedural failures found during the inspection of Form(s) I-9.” While technical and procedural failures do not present the same enforcement risks as substantive violations, “uncorrected technical or procedural failures become substantive violations” if an employer fails to adequately address them within 10 business days of receiving a notice from ICE.
5. Warning Notice
ICE will issue a Warning Notice following an I-9 audit, “when substantive verification violations were identified, but there is an expectation of future compliance by the employer.” Typically, ICE will provide the employer with at least six months to address the substantive violations identified in the Warning Notice, and then it will issue a subsequent Notice of Inspection (NOI) before conducting a follow-up I-9 audit.
6. Notice of Intent to Fine
When ICE uncovers alleged substantive violations during an I-9 audit, it also has the option of issuing a Notice of Intent to Fine. As ICE explains, when it issues a Notice of Intent to Fine, “the employer is entitled to a hearing before an Administrative Law Judge at the Office of the Chief Administrative Hearing Officer (OCAHO),” provided that the employer requests a hearing within 30 calendar days.
If an employer does not request a hearing within 30 calendar days or if the OCAHO affirms ICE’s findings, the employer can face substantial fines under federal law. Not only are these fines adjusted annually for inflation, but the “base” penalty amount can also be increased by up to 25 percent based on various “aggravating factors.”
7. Criminal Investigation for Alleged Immigration Law Violations
Along with triggering civil fines, alleged violations uncovered during I-9 audits can also trigger criminal investigations in some cases. If ICE agents find evidence to suggest that an employer has knowingly or willfully failed to comply with the federal work authorization verification requirements—or committed other violations such as harboring illegal immigrants—it can work with the U.S. Department of Justice (DOJ) to pursue criminal charges. In criminal cases, employers can face substantial fines and other penalties, while any individuals accused of criminal misconduct can face fines and federal imprisonment.
Insights for Avoiding Unnecessary Consequences During an I-9 Audit
With these risks in mind, when facing I-9 audits, employers must ensure that they are prepared to defend themselves effectively. Whether this means affirmatively demonstrating compliance or taking another approach to avoiding civil (or criminal) penalties will depend on the specific circumstances at hand.
In all cases, however, a cautious and informed approach is required. ICE is aggressively enforcing employers’ immigration-related compliance obligations, and when in doubt, it typically errs on the side of assuming non-compliance. This means that it is up to employers to prove that adverse consequences are unwarranted, and this means that employers must have a clear and comprehensive strategy for handling all aspects of the I-9 audit process. Employers should be prepared to promptly appeal any unwarranted determinations of non-compliance resulting from their I-9 audits as well.
Schedule a Call with a New York I-9 Audit Attorney at Bell Law Group Today
If you need to know more about the risks involved in facing an I-9 audit (and the steps employers can take to mitigate these risks), we encourage you to contact us promptly. To schedule a call with a New York I-9 audit attorney at Bell Law Group as soon as possible, please call 516-280-3008 or contact us online today.
