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Thursday, July 2, 2009

Businesses Nationwide Served With I-9 Audit Notices

Businesses Nationwide Being Served With I-9 Audit Notices

Reprint: Opelika-Auburn News, July 5, 2009

The U.S. Immigration and Customs Enforcement (ICE) is launching a bold, new audit initiative today by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

"ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE's long-term strategy to address and deter illegal employment," said Department of Homeland Security Assistant Secretary for ICE John Morton as posted at

Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.

In FY 2008, ICE issued 503 similar notices throughout the year. In April, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. The nationwide initiative is a direct result of this new strategy and ICE is now re-emphasized its commitment to seek criminal prosecutions of employers in lieu of civil fines as was a common strategy under the Bush Administration.

Practical Counsel: Getting Ready For the Knock or Envelope
An employer’s receipt of an I-9 audit inquiry or notice should be treated as the preliminary step in determining whether ICE will initiate a criminal investigation and prosecution. Even if a criminal investigation does not follow, employers found with I-9 violations could face substantial civil fines. The Does and Don’ts of I-9 Compliance:
  • Do call your labor lawyer if your receive a notice, call, visit, etc and be prepared to respond promptly;
  • Don’t take any action that could be viewed as intentional alerting or tampering with your completed I-9s forms and backup documents;
  • Do start an internal review of your complete I-9 processes, storage systems and supervisor training;
  • Do have an internal I-9 audit and take corrective actions on defective I-9s;
  • Don’t destroy any defective I-9 form, just staple to the back of the new form;
  • Do consider use of E-Verify as your only “get out of jail card.” (my prior article published on May 29, 2009) 
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at