The Miller Law Offices can protect your company before, during and after an ICE audit
What is an I-9 Audit?
The objective of the ICE audit, a statutory administrative inspection, is a determination whether the employer has violated the prohibitions against knowing hiring or continuing employment of unauthorized aliens and Form I-9 paperwork violations. An ICE administrative Form I-9 inspection must be preceded by a 72-hour notice. This is accomplished when a Notice of Inspection is served indicating the date, time and place for the ICE audit, and the documentation that the employer is requested to produce.
Is an I-9 Audit civil or criminal?
The Obama Administration has clearly preferred using administrative I-9 inspections with resulting civil fines over the workplace raids that generated controversy in previous years, using criminal search warrants based on probable cause, which do not require advance notice to suspected violators. Nevertheless, it is clear that employers may still face criminal charges for violations that are uncovered during the administrative I-9 audits, which are conducted by ICE special agents and forensic auditors.
Where is the I-9 Audit Conducted?
An inspection of the Forms I-9 may be conducted either on the employer's premises or at an agency office, at the agencys discretion. Employers may provide the forms in their original form or on microfilm or microfiche at the location where the request for production was made. If the Forms I-9 are kept at another location, the employer should notify the inspectors of that location and make arrangements for the inspection to be conducted there.
Refusal or delays in the presentation of I-9s
If the employer does not comply with the request to present the Forms I-9, ICE may compel production by issuing a subpoena. A refusal or delay in the production of the Forms I-9 will be considered a violation of the retention requirements by the government. ICE asserts its general powers to obtain personnel records that pertain to the hiring and employment of an individual employee, and typically issues an administrative subpoena to obtain these materials. Some employers have refused to comply with the administrative subpoena necessitating the agency to enforce the subpoena in federal court.
Can ICE search the premises without a warrant?
In the absence of consent by the employer to a survey, ICE may not make a warrantless search of the company's premises.
ICE has requested other documents besides
the I-9s. Are we compelled to produce those documents?
The Notice of Inspection (NOI) may be accompanied by a request that the employer provide supporting documentation, which may include copies of attached documents presented at time of I-9 completion for all current employees, and all terminated employees for the specified audit period and employee rosters or payroll reports listing all persons employed during the specified period. In the alternative, the NOI may be served along with an administrative subpoena.
A recent administrative subpoena required presentation of the following documents:
Original I-9 Forms and any copies of attached documents presented at time of I-9
completion for all current employees, and all terminated employees for the specified
Employee roster or payroll report listing all persons employed for the specified audit
period, containing the following information:
Full employee name (First Name, Middle Initial, Last Name)
Social Security number
Date of birth
Date of hire and date of termination (if applicable). If the employee has multiple dates of hire, provide all dates of hire and all dates of termination occurring during the audit period;
Monthly payroll reports for the specified audit period with wage detail by employee;
Copies of recent state unemployment insurance quarterly tax reports;
Copies of the Quarterly Tax Statements (IRS Form 941) pertaining to all employees
during the audit period;
Independent contractor roster listing the dates of hire and termination (if applicable)and copies of IRS Tax Form 1099 filed during the audit period, for all independent
A current listing of all paid on-call individuals employed on a sporadic, irregular, or
intermittent basis and not deemed to be employees;
Copies of Social Security Administration Employer Correction Requests received
during the audit period;
Copies of any Citizenship and Immigration Services (CIS) I-129 or I-140 petitions
and Department of Labor (DOL) ETA-9089 certifications submitted or received
during the audit period;
Copies of articles of incorporation, business license(s) and the most recent annual
Employer Identification Number (EIC) and Taxpayer Identification Number (TIN)
If available, copies of company procedures or policies regarding Form I-9 preparation.
The foregoing is not legal advice and should not be relied on as such.