U.S. Immigration and Customs Enforcement (ICE) on July 1 issued formal I-9 Notices of Inspection letters to 652 businesses nationwide — 149 more audit notices in a single day than were issued in all of 2008. Businesses both large and small were targeted, with 40% of those being notified that they would be audited having fewer than 20 employees.

As reported in the May 11 issue of Nation’s Building News, The Department of Homeland Security's new “Worksite Enforcement Strategy” is shifting the focus of immigration law enforcement from illegal workers to employers.

In anticipation of this new policy, NAHB advised employers “to faithfully comply with the I-9 verification process for new hires, to use current forms and to adhere to all record-keeping requirements in anticipation of an increased possibility that they may be subjected to an I-9 audit.”

What is a Form I-9?

Federal immigration law places an affirmative duty on employers to complete Employment Eligibility Verification Form I-9 to verify the identity and work authorization of all persons they hire. Employers are required to keep a completed Form I-9 on file for every employee (except those who were hired before Nov. 7, 1986).

What is an I-9 audit?

ICE has the authority -— without demonstrating any cause and without the necessity of obtaining a warrant — to inspect every employer's Form I-9 records to verify compliance and to check the accuracy of the forms. This inspection is called an I-9 audit. Under the law, employers are entitled to receive a written notice of an audit three days before it is conducted.

What penalties can be imposed for irregularities discovered in the audit?

If any deficiency or illegality is found, ICE will issue a Notice of Intent to Fine (NIF) to the employer. Paperwork mistakes and omissions are subject to fines ranging from $110 to $1,100 per infraction. More serious violations involving the employment of illegal workers are subject to steeper fines, and even imprisonment for those who have engaged in a regular pattern or practice of willful violations.

What proactive efforts can a builder-employer take to avoid audit penalties?

It is highly recommended that builder-employers conduct regular internal audits of their records to re-verify the legitimacy and appropriateness of the documents on file, to confirm that all Form I-9s are accurate and complete and to assure that any temporary work authorizations have not expired.

Given the new enforcement approach of targeting employers, it is extremely important for builders to bring in legal counsel immediately if they receive an I-9 audit notice. Counsel should be present at all times during the audit, and any demands by an investigator should be referred to the attorney for appropriate action and response.

For more on the I-9 verification process and audits or to download the current Form I-9, click here.

For further information, e-mail David Crump at NAHB, or call him at 800-368-5242 x8491. [return to top]