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The Government is Gearing Up For Additional Compliance Audits

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The Government is Gearing Up For Additional Compliance Audits

December 3, 2009

  • Audits Now in the I-9 Arena. In our October immigration news alert, we provided a heads up and best practices advice about government H-1B *unannounced* site visits occurring this fall to verify representations made in employers' underlying H-1B visa petitions. Now there's more, this time dealing with I-9 forms. On Friday, November 20, 2009, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary, John Morton, announced that it had served audit notices, or "Notices of Inspections" (NOIs), to 1,000 businesses last week. Employers' hiring records, including I-9 forms, are always subject to audit to ensure the compliance of employment eligibility verification laws. [Employers must always keep I-9 forms for existing employees. When employees terminate, employers must keep I-9s for the later of (1) 3 years after the employee's hire date, or (2) 1 year after the employee's employment ends.]
  • Employer-Focused Audits. This continued enforcement comports with the government's stepped up efforts to focus on employers, versus the previous Administration's focus on employees. In April, Department of Homeland Security issued updated worksite enforcement guidance with emphasis on ICE's priority of focusing, in part, on employers who establish illegal workplaces by knowingly hiring illegal foreign national workers. ICE has identified the Form I-9 as an effective tool to enforce criminal charges against employers who do not comply with employment eligibility verification laws. I-9 violations may result in civil penalties and criminal prosecution of employers who are cognizant of their unlawful employment practices. Assistant Secretary Morton was quoted, "ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces. We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules."
  • Be Prepared for Audits. As the year comes to a close, it is a good time to audit I-9s and other immigration documentation. The government has historically looked favorably on employers' efforts to correct I-9 errors and make other good faith efforts at compliance.

We hope that this information is helpful. Please contact our office if you have any questions on I-9 training and audits, or the new electronic I-9 verification program, E-Verify.

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