As we prepare for President-elect Trump’s second term, we expect to see some of the same policies and immigration trends from his first term. One of those is a significant increase in Form I-9 audits and worksite enforcement investigations.

Employers can best prepare by understanding how to correctly fill out and maintain the Form I-9, conducting internal audits to ensure accuracy and compliance and updating their internal procedures for responding to an audit. As we anticipate these audits and investigations to ramp up in the next few years, it’s beneficial for employers to have clear expectations about why these investigations occur, what happens during them and what rights and obligations they have.

What is a Form I-9 audit? 

Employers are required by law to use Form I-9 to verify that all employees hired after Nov. 6, 1986, are authorized to work in the United States. Companies must maintain I-9 forms for all current employees as well as former employees for at least three years from the first day of employment or one year from the date employment ended, whichever is longer.

A Form I-9 audit is initiated when the Department of Homeland Security’s Immigration and Customs Enforcement agency (ICE) Homeland Security Investigations (HSI) serves the employer a written Notice of Inspection (NOI).

The NOI generally includes:

  • The time and date the agency expects to conduct the inspection
  • Contact information for the ICE agent who is in charge of the inspection
  • Which documents will be inspected
  • Deadline by which the employer must respond to the NOI

HSI may also request that the employer provide supporting documentation, which may include but is not limited to: a copy of the employer’s payroll, a list of active and terminated employees, articles of incorporation and business licenses. Employers have at least three business days to produce the I-9 forms and supporting documents requested in the NOI.

During the Form I-9 audit, HSI will be looking for both technical and substantive violations. Technical violations are typically procedural errors that can be corrected by the employer within 10 business days of the violation being reported by HSI.

Substantive violations are more serious and include failure to complete the Form I-9, failure to complete the Form I-9 within three business days, accepting fraudulent documents and failing to properly verify the documents. These errors are not allowed to be corrected.

What triggers a Form I-9 audit? 

A Form I-9 audit may be triggered by complaints from the organization’s current or former employees, whether they observed unfair or questionable hiring practices or believe their job was lost to an undocumented worker.

Many times, an audit is initiated due to potential red flags in data or trends within a particular industry or region. The Department of Homeland Security uses software to analyze their extensive database of immigration and employment verification data, searching for anomalies and inconsistencies that may indicate noncompliance.

What rights do employers have during a Form I-9 audit? 

Employers should cooperate with ICE agents during a Form I-9 audit. However, they should also be aware of their rights and ensure employees know theirs as well.

Employer rights during Form I-9 audits:

  • Employers do not need to allow ICE HSI agents access to the workplace (beyond “public” areas, like a lobby or waiting area) without a judicial warrant
  • Employers can take the full three days after the NOI is received to collect documentation and seek counsel from their immigration attorney
  • Employers have the right to remain silent, not sign any documents and speak with an attorney before answering questions from agency representatives
  • Employers have the right to contest fines or negotiate a lower fine that comes as a result of the I-9 audit

Employers should seek counsel from their immigration attorney if subject to a government audit or investigation.

What results from a Form I-9 audit? 

After conducting the Form I-9 audit, the auditing agency will notify the employer of its findings in writing. A Notice of Inspection Results means the organization was compliant. If any violations were identified during the audit, an employer may receive one of these notices:

  • Notice of Suspect Documents: An employee’s documentation does not match the employee, or the documentation is not valid for employment
  • Notice of Discrepancies: The agency was unable to identify an employee’s eligibility to work in the United States
  • Notice of Technical or Procedural Failures: An error was identified on at least one form and the employer has 10 business days to make corrections
  • Warning Notice: Violations were identified, but the employer is expected to comply in the future
  • Notice of Intent to Fine: May be issued for substantive violations, uncorrected technical or procedural errors, known hire violations and/or continuing to employ unauthorized employees

What is a worksite enforcement investigation? 

A worksite enforcement investigation, sometimes referred to as a “raid,” typically takes place when ICE agents are attempting to detain employees they believe are working in the United States unlawfully. ICE agents may come to a workplace to target specific workers as part of an ongoing investigation or question all workers who are present.

Unlike a Form I-9 audit, ICE does not need to provide the employer with any prior notice. However, ICE does need to provide the employer with a warrant to enter the premises.

What rights do employers and employees have during a worksite enforcement investigation? 

Employers and employees still have certain rights during a worksite enforcement investigation.

  • Immigration officials are not allowed to enter private areas of a business without a warrant or consent from an employer
  • Employers have the right to refuse their consent to enter private areas of the business
  • The warrant must be signed by a U.S. District Court judge or a State Court judge
  • Employers can thoroughly review the judicial warrant, ensure that ICE agents follow the terms of the warrant and note any deviations from the terms
  • If the ICE agents only have an administrative warrant looking for an employee, the employer does not have to say if that employee is working on location that day and they do not have to take ICE to that employee

Stay compliant with BAL 

Whether your organization wants to conduct an internal Form I-9 audit as a precautionary measure, update its site visit protocol or finds itself in the middle of an investigation, BAL is equipped and ready to help. Our immigration legal experts are deeply knowledgeable about Form I-9 requirements and are experienced in navigating changes in policy and government enforcement trends. We have an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as manage complex matters such as I-9 audits and investigations.

Contact our team of immigration legal experts to discuss how we can help ensure compliance and a fair investigation.