Deepak Ahluwalia is the lead attorney and manager of the employment-focused immigration division of Patel Gaines LLC. He consults with corporations and clients on all matters related to corporate and employment immigration with a focus on I-9 compliance and audits. This content is provided for informational purposes only and is in no way intended to constitute legal advice or create an attorney-client relationship.
You’ve seen the news coverage—another day, another highly visible immigration raid on a business. All politics aside, there is no denying the federal government is making a big, loud statement that it will continue to come down hard on the companies that flout hiring rules. A very different sort of enforcement action that tends to fly below the radar, but still can be intimidating and costly is an inspection of your hiring records by United States Immigration and Customs Enforcement (ICE).
ICE has drastically stepped up these inspections, as well. In 2017, more than 1,300 ICE audits of I-9 hiring paperwork resulted in 71 indictments. The agency’s leadership is committed to keeping the pressure on all companies, regardless of size, concerning proper handling of I-9 forms. In reality, your construction business probably will never undergo an ICE audit. It will probably also never be struck by an earthquake, flooded by a hurricane or leveled by a natural gas explosion, but it’s a good idea to have insurance just in case.
The same is true for dealing with ICE and your employee I-9 forms. You can roll the dice and hope you never receive the dreaded Notice of Inspection (NOI). But if you do receive one, you will have 3 days and no more to prepare. Guess what happens when you hire an immigration attorney and tell them he/she has 3 days to prepare your company for the ICE inspectors. That’s right; you have the honor of paying maximum fees for the necessary legal work due to the duress of the extremely short deadline.
The 3-day prep window also means the lawyers might not be able to catch and correct every mistake in time. Get ready to shell out even more cash to pay the ICE fines for the overlooked I-9 problems.
For example, let’s say you have eight employees, and your 3-day panic review misses three employment violations and three technical violations. The three employment violations involve knowingly hiring and/or continuing to employ people who do not have the necessary documents to prove they are eligible to work in the U.S. Those fines could reach around $24,000 total. The three technical violations essentially involve poor record keeping and could total about $5,200 in ICE fines.
That’s almost $30,000 in fines in this hypothetical example of a company with eight employees. Things could go downhill fast for a company with, say, 50, 100 or 200 employees. The math is simple—and frightening. But it doesn’t have to go that way. A more prudent approach is to get help from a qualified immigration attorney now, before you are faced with ICE inspectors showing up in 3 days. The benefits of being pro-active by retaining an attorney to make sure your I-9 house is in order are many.
First, you’ll avoid premium billing rates for legal assistance. That savings, alone, can be substantial. The more employee files you have, the more money you will save. Secondly, by digging into the files before you are forced to do so, you may be treated more leniently than if you wait for a NOI. ICE inspectors have significant discretion to reduce fines when the companies they audit show an honest, good-faith commitment to complying with the rules. That’s true even if your I-9 files needed major corrections based on your lawyer’s own review of the files.
Provided you and your legal team make the needed changes, and thoroughly document them, there’s a good chance your previous mistakes will incur much lighter penalties. As an attorney who has reviewed thousands of I-9 files and guided clients through dozens of ICE audits, I’ve seen firsthand how favorably most inspectors look upon sincere efforts to get those I-9 files into good shape. That can mean savings of tens of thousands of dollars.
Finally, getting ahead of any I-9 problems now provides a lot of peace of mind. As a business owner or executive, you know how elusive that can be. Correcting your I-9 files and knowing you’re in compliance should ICE come calling could not only stave off some expensive penalties, it might just help you sleep a little better at night.