|Attention all companies and employers!
Department of Homeland Security undertakes more I-9 Audits of businesses
Please take note that The Department of Homeland Security (DHS) has issued a 1,000 new I-9 audit notices to employers across the country. As per the I-9 audit, ICE requests the information in the subpoena/notice be provided to them within three business days.
Also please bear in mind that there are both civil and criminal aspects involved in the I-9 audit process and it is imperative that you and your clients have a sound strategy in place. The trend is set to increase over the next year.
U.S. Immigration Customs Enforcement (ICE), verified that ICE continues to focus its investigations both on businesses that were brought to their attention by tips and leads and those that work in areas of national security and critical infrastructure.
We have been notified that , although companies across the board have been “swept up” in this latest drive, those being targeted in these audits are typically involved in areas deemed to be related to national security and public safety. The new audits have signaled a substantial increase in the number of audits this year (prior to this 654 I-9 audit notices were issued to companies with employees earlier this year), over last year. The result of the previous t round of Immigration and Customs Enforcement (ICE)’s I-9 audits apparently resulted in more than 60 employers receiving fines totaling more than $2 million, as well as a substantial further number of companies still under investigation. .
In the DHS release, ICE Assistant Secretary John Morton has continued to stress the agency’s commitment to aggressive investigations and outreach programs as a means to “encouraging” employer compliance and want to expand its e- verify system.
An additional factor for employers to take cognizance of, is they are furnished with so called “audit notices” which place an onus upon them which have not previously been requested. Previously, the usual requests would be that they were to make available: original I-9 forms, payroll records, and federal and state wage tax reporting forms. Now, the new subpoenas also include:
· Independent contractor roster including dates of hire and termination and copies for Form 1099s;
· Listing of all paid on-call individuals employed on a sporadic, irregular or intermittent basis and not deemed, by the employer, to be an employee;
· “No Match Letters” and other related correspondence with the Social Security Administration;
· Copies of I-129 or I-140 petitions filed with United States Citizenship and Immigration Services or labor certifications filed with the Department of Labor ;
· Copies of corporate documentation including annual reports and federal tax reporting numbers; and,
· Copies of any information relating to the company’s procedures for I-9 compliance.
ICE usually also requests the employer to complete a questionnaire relating to the company’s history, shareholding, turnover and other related information. ICE may also request information relating to e- verify, previous I-9 audits and other issues. They may also request information relating to the employment of independent contractors and whether they have been “properly identified”.
Further investigations will also include the identity of each worker, their identity and their work eligibility and whether they have been sponsored by the employer. If you are an employer in the U.S. (regardless even if your employees are U.S. Citizens you must be I-9 compliant) in order to protect your business.
The best approach is for employers to have a preventative strategy in place by having an Immigration Attorney come in on an initial basis to prepare all documentation, train relevant staff and take all other steps necessary to ensure that the companies do not transgress the provisions of the Act.