Part VI: Step Three in the ICE Audit Process

We took a little break from detailing the US Immigration and Customs Enforcement (ICE) audit process for you, but now we’re back with the step three of ICE’s inspection.

Our entries on Form I-9 are guidelines that employers should follow in order to avoid audit by ICE. After an ICE officer visits the employer‘s worksite and examines Forms I-9, then the officer determines whether the employer adheres to rules and regulations or is in violation.

Step Three: Penalties

The employer may be given a monetary fine for technical violations. When determining the penalty amount, ICE considers five factors: the size of the business; good faith effort to comply with I-9 regulations; the seriousness of the violation by the employer; whether the violation(s) by the employer involved hiring unauthorized workers; and the employer‘s history of previous immigration and I-9 violations.

An employer who ‘knowingly’ hired, or continued to employ unauthorized workers, will be required to stop hiring unauthorized workers. The employer may be fined and in certain situations may be prosecuted criminally. This action by ICE may also involve criminal prosecution of the company’s officers. The employer may also face debarment by ICE, meaning that the employer can not participate in future federal contracts, or receive other government benefits.

Monetary fines for ‘knowingly’ hiring and ‘continuing to employ violations’ range from $375 to $16,000 per violation, with repeat offenders receiving higher fines. Fines for substantive violations, which includes failing to produce Form I-9, range from $110 to $1,100 per violation.

Employers who violate the law may be subject to:
• civil fines
• criminal penalties (when there is a pattern of violations)
• debarment from government contracts
• a court order requiring the payment by the employer to an individual employee discriminated against
• a court order requiring the employer to hire the individual employee discriminated against

An example of how an employer should not proceed is made by two companies in Houston. Atrium Companies and Advanced Containment Systems Inc. (ACSI) were found by ICE of knowingly hiring illegal immigrants to work in their facilities. Both companies were made to forfeit $2 million to Department of Homeland Security. However, the US government has agreed to not criminally prosecute the companies; instead, forcing the companies to rectify previous immigration violations, pay a hefty penalty and remain cooperative with the criminal investigation.

Atrium Companies and ACSI were sent multiple notices by the Social Security Administration (SSA), signifying that the companies’ employee names and Social Security numbers did not match SSA records. Both companies did not address this question of immigration, and continued to employ illegal immigrants from 2005-2009.

In 2011, both companies received separate audits by ICE. These audits showed that nearly half of both companies’ workforces consisted of illegal immigrants, and that the companies were knowingly hiring illegal immigrants. Since the audit’s began, all illegal immigrant employees were terminated.

Read the full details of the case here.

In the next section of Part VI, Section D, we will be discussing the last step in ICE’s auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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