Ryan Swanson & Cleveland, PLLC
401 Union Street, Suite 1500
Seattle, WA 98101-2668
206.464.4224
Ryan Swanson & Cleveland, PLLC
401 Union Street, Suite 1500
Seattle, WA 98101-2668
206.464.4224

Ryan Swanson & Cleveland, PLLC
401 Union Street, Suite 1500
Seattle, WA 98101-2668
206.464.4224

News & Articles

Understanding USICE Audits: Employers' Obligations, Preparation, and Potential Consequences

Published on May 8, 2024

Despite all the attention given to the crisis at the U.S. southern border, USICE has continued to audit employers suspected of hiring illegal labor, debarring companies and individuals from future immigration benefits and imposing financial sanctions. These enforcement actions will continue this year. We already have reports of more and more audits throughout the state of Washington. So, it is just a matter of time before you are subject to such an audit.

THE AUDIT

USICE agents only have to provide employers (dealers) 72 hours to produce the Forms I-9 for the agency to review. It is therefore more critical than ever to perform a self-audit on all of your Forms I-9 now to help avoid potential fines and penalties. If agents from USICE or the Department of Labor show up at your dealership, be sure to immediately contact a knowledgeable immigration attorney. If there is missing data that is technical or procedural, you will have at least 10 days after the audit to fix the problems. But only the employee can correct Section One and the employee may be long gone. So you will not be able to correct Section One. Now is the time to audit your Forms I-9 and correct them. There are correct ways to amend the forms, so consult a competent immigration attorney.

You should be prepared for the scope of the investigation. Investigators are requesting records of all current employees as well as any employees terminated within the last year. All independent contractors, temporary staff from an agency, and “on-call” individuals will be scrutinized and the dealer must produce a roster and supporting documentation. Dealers must produce Social Security no-match letters received over the past year. The dealer must provide an employee roster, payroll reports, IRS quarterly tax statements and Washington State L&I reports.

TEN DO’S AND DON’TS ON INITIAL PREPARATION OF THE FORMS

  1. Do ensure you are using the correct version of the Form I-9. Check the website www.uscis.gov every six months to see if there is a new form.
  2. Do keep all the Forms I-9 in a separate folder for current employees and another for terminated employees. You should not keep the Form I-9 in each employee’s personnel file.
  3. Do make a copy of the document(s) submitted by the employee for your file.
  4. Do not accept any document that has an expiration date that has expired.
  5. Do not re-verify U.S. passports or passport cards, Permanent Resident or Resident Alien Cards, or List B Identity documents.
  6. Do have a tickler system to ensure you re-verify expiring work authorization documents before they expire, and do not allow an employee to continue to work after his or her work authorization document expires.
  7. Do not engage in discrimination or document abuse when completing the I-9 form process. You do not get to choose which documents the employee should present.
  8. Do accept a document that is on the List of Acceptable Documents that appears to be genuine and relates to the person presenting it to you for the completion of Section 2 of the Form I-9.
  9. Do conduct a self-audit of your Forms I-9 to make sure they are correctly completed. It is so easy to make errors on these forms or leave them incomplete. Assign a detail-oriented person to this process.
  10. Do know your rights! And make sure those on the front lines know them also. When the USICE agents come to review your Forms I-9 and conduct an audit, make sure they know they can insist on a written Notice of Inspection three business days before you turn over your original Forms I-9. Offer to bring the documents requested to their office. The less time they are on your premises the better.

ISSUES ON RETENTION/DESTRUCTION

Forms I-9 must be kept for three years after the date of hire, or one year after the date employment is terminated, whichever is later. For example, if an employee retires after 15 years, his/her Form I-9 will be stored for a total of 16 years. You should destroy the Forms I-9 that you are not required to keep because they may contain errors that would subject the company to fines if there is an audit.

THE PUNISHMENT

USCIS wants to send a message to employers. “Just a small fine or a slap on the wrist is not a deterrent…we see more robust criminal cases…the prospect of 10 years in prison carries much sharper teeth than just a small fine,” emphasizes Julie Myers, former Director of USCIS. Employers, which includes owners, executives, supervisors, and managers, could face multiple charges of Form I-9 errors and violations, including Harboring of Illegal Aliens, Inducing Aliens to stay in the United States for Illegal Purposes, Making False Statements on the Form I-9, aiding or abetting an employee in making false statements or committing other immigration law violations. The liability is assessed for constructive knowledge, not actual knowledge. Fines range from $281 to $2,789 plus per occurrence, (an occurrence is one single Form I-9 violation) to imprisonment and forfeiture of profits. If an employer knowingly hired or continued to employ a worker without work authorization, the penalties range from $698 to $27,894 per worker.

OUR OFFER

We are available to do a random audit of your Forms I-9 for one hour. If we do not find at least ten violations our time is free.

Joel H. Paget is a Senior Immigration Attorney at Ryan, Swanson & Cleveland, PLLC. For more information, please contact Joel Paget at 206.654.2215/[email protected] or visit www.SeattleImmigrationGroup.com.

 

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